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Full text of "Manual For Administrative Law Judges"

MANUAL 

FOR 

ADMINISTRATIVE 

LAW JUDGES 



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' X MCMLXIV /^/ 



'€cjm^P' 



Administrative Conference of the United States 
3rd edition 1993 



^4 



Administrative Conference of the United States 



The Administrative Conference of the United States was estab- 
lished by statute as an independent agency of the federal 
government in 1964. Its purpose is to promote improvements in 
the efficiency, adequacy, and fairness of procedures by which 
federal agencies conduct regulator/ programs, administer grants 
and benefits, and perform related governmental functions. 

To this end, the Conference conducts research and issues reports 
concerning various aspects of the administrative process and, 
when warranted, makes recommendations to the President, Con- 
gress, particular departments and agencies, and the judiciary 
concerning the need for procedural reforms. Implementation of 
Conference recommendations may be accomplished by direct 
action on the part of the affected agencies or through legislative 
changes. 



MANUAL 

FOR 

ADMINISTRATIVE 

LAW JUDGES 



MORELL E. MULLINS 

Professor of Law 

Universify of Arkansas at Little Rock 



Administrative Conference of the United States 
3rd edition 1993 



For sale by the U.S. Government Pnnting Office 
Superintendent of Documents, Mail Stop: SSOP, Washington. DC 20402-9328 
ISBN 0-16-043039-9 



Table of Contents 



PREFACE - 1993 Edition v 

PREFACE- 1982 Edition ix 

I. Introduction 1 

A. General Overview 2 

B. Specific APA Powers of the Administrative Law Judge 5 

C. Alternative Dispute Resolution and Administrative Law 7 

1 . General Background 7 

2. Relevance of ADR to Administrative Law Judges 8 

3 . Confidentiality 13 

4. The Extension of ADR into Administrative Law 16 

IL Prehearing Conferences & Settlements 18 

A. Preparation for Prehearing Conference, With Emphasis 

on Complex, Multiparty Proceedings 20 

B. Notice 20 

C. Conference Transcript 21 

D. Management of the Conference 22 

E. Conference Report 25 

F. Preli'^'nary Motions and Rulings 25 

G. Other rehearing Proc; jres 26 

H. Settlement Negotiations and ADR Possibilities 27 

1 . Settlements 27 

2. ADR 29 

III. Discovery 29 

A. Subpoenas 30 

B. Discovery and Confidential Material 31 

C. Testimony of Agency Personnel and Production of 

Agency Documents 32 

D. Reports, Estimates, Forecasts, and Other Studies 33 

E. Polls, Surveys, Samples, and Tests 34 

IV. Prehearing Techniques for Expediting and Simplifying the 

Complex Proceeding 34 

A. Written Exhibits in Complex Cases 40 

B. Elimination or Curtailment of Hearing Suspensions 41 

C. Stipulations and Official Notice of Documentary 

Material 42 



Manual for AoMiNisTRATrvE Law Judges 



D. Intervention and Participation by Nonparties 42 

E. Joint Presentations 44 

F. Organizing the Complex or Multiparty Hearing 45 

G. Special Committees 46 

H. Telephone or Videophone Conference 46 

I. Additional Conferences 47 

J. Trial Briefs or Opening Statements 47 

K. Interlocutory Appeals 47 

L. Mandatory Time Limits 48 

M . Summary Proceedings 49 

N. ADR 50 

Hearing 51 

A. Preparation 51 

1. Notice 51 

2. Place of Hearing 51 

3 . Hearing Facilities 52 

B. Mechanics of the Hearing 53 

1 . Transcript 54 

2. Convening the Hearing 55 

3. Trying the Simple Case 56 

a. Opening Statement 56 

b. Direct Presentation 56 

c. Cross-examination 57 

d. Miscellaneous 58 

4. Trying the Complex Case 59 

a. Direct Presentation 60 

b. Receipt of Exhibits 61 

c. Cross-examination 61 

d. Rebuttal Testimony 62 

e. Redirect 63 

f. Multiple Witness Testimony 63 

g. Questions by the Judge 65 

h. Closing the Presentation 66 

5 . Rules of Evidence 66 

a . Hearsay 68 

b. Best Evidence 68 

6. Offers of Proof 68 

7. Constitutional Privileges: Self-Incriminating 

Testimony, Search^and Seizure, and 
Suppression of Evidence 69 

8. Argument on Motions and Objections 70 



Administrative Conference of the U . S . iii 



9. Confidential Information 70 

a. Methods of Handling Confidential 

Material 70 

b. In Camera or Closed Sessions 72 

10. Supplemental Data 74 

11. Mechanical Handling of Exhibits 74 

C. Concluding the Hearing 75 

1 . Oral Argument 75 

2. Conferences 75 

3. Briefs 75 

4. Notice of Subsequent Procedural Steps 76 

5. Closing the Record 76 

6. Correcting the Transcript 76 

D. Retention of Case Files 77 

VI. Techniques of Presiding 77 

A. Preparation and Concentration 77 

B. Judicial Attitude, Demeanor, and Behavior 78 

C. Controlling the Hearing 79 

D. Some Common Problems 80 

E. Off-the-Record Discussions 81 

F. Hearing Hours and Recesses 82 

G. Audiovisual Coverage 82 

1 . Physical Interference 85 

2. Interference with the Dignity of Proceedings 85 

3. Psychological Distraction 85 

H. Taking Notes 86 

VII. Conduct 87 

A. Disciplinary Actions Against AUs 90 

B. Confidentiality 94 

C. Ex Parte Communications 95 

D. Bias and Recusal 97 

E. Fraternization 97 

F. Individual Requests for Information 98 

G. Interaction with Other Independent Officers 98 

H. The Media 99 

VIII. The Decision 99 

A. Oral Decision 100 

B. Written Decision 101 

1. Format 102 



iv Manual for Administrative Law Judges 



2. Research 105 

3. The Decisional Process 106 

4. Style 110 

C. Writing the Decision 112 

1. Brevity 114 

a. Needless Words 114 

b. Short Simple Words 114 

c. Redundant Phrases 115 

d. Short Sentences 115 

e. Paragraphs 117 

2. Punctuation 117 

3. Active or Passive Voice 117 

4. Ambiguity 118 

5. Stylistic Quirks 119 

a. Elegant Variation 119 

b. Litotes 119 

c. Genderless English 120 

6. Miscellaneous 120 

a. Names 120 

b. Technical Terms 121 

c. Attribution 121 

d. Speech Tags 121 

e. Ellipsis 122 

f. Latin Terms 122 

7. Being Clever 122 

8. Rewriting 123 

Appendices 1 25 

Appendix 1 127 

Appendix II 205 

Appendix III 207 

Appendix IV 209 

Appendix V 229 

Appendix VI 233 



PREFACE - 1993 Edition 

Revising this Manual for Administrative Law Judges, which was originally 
written by an administrative law judge of Merritt Ruhlen's stature, presented a 
unique challenge. There was a natural reluctance to tamper with the voice of 
experience. Moreover, Judge Ruhlen's book had become something of a 
standard in its field. An article in one law journal described it as "an 
admirable handbook [which] reflects his long experience. . .with the CAB."' 
In fact, Judge Ruhlen's Manual has been cited in several scholarly articles^ and 
in a number of agency and administrative law judge decisions.^ Recognizing 
this, the present edition has tried to leave intact as much of the original as 
possible. Special efforts have been made to preserve the spirit of Judge 
Ruhlen's text, and sometimes the exact words, where they address the actual 
process of judging and conducting administrative proceedings. 

However, important changes in administrative law have occurred since 
1982. For instance, the Administrative Dispute Resolution Act, Pub. L. No. 
101-552, 104 Stat. 2736 (1990), incorporated alternative dispute resolution 
(ADR) into federal administrative law and amended the Administrative 
Procedure Act to remove any doubt that ADR could be an integral part of 
agency adjudications. 

Even before that watershed, the administrative adjudication landscape had 
changed significantly. Legislation had reduced several agencies' economic 



'Allen, Twilight or Just an Overcast Afternoon, 1986 DukeL.J. 276, 278, n. 10. 

^Anderson, Negotiation and Informal Agency Action: The Case ofSuperfUnd, 1985 DukeL.J. 
261,356, n.357; Breger, The APA: An Administrative Conference Perspective, 72 Va. L. Rev. 
337, n.4 (1986); Graham, Evidence and Procedure for the Future: Application of the Rules of 
Evidence in Administrative Agency Formal Adversarial Adjudications: A New Approach, 1991 U. 
III. L. Rev. 353, 370, n. 125; Kauper, Note: Protecting the Independence of Administrative Law 
Judges: A Model Administrative Law Judge Corps Statute, 18 U. MlCH. J.L. Ref. 537, n. 1 
(1985); Whiteside, Comment: Administrative Adjudications: An Overview of the Existing Models 
and Their Failure to Achieve Uniformity and a Proposal for a Uniform Adjudicatory Framework, 
46 Ohio St. L.J. 355, 371, n.l39 (1985). 

^E.g., In the Matter of Benedict P. Cottone, 63 FCC 2d 596, 605 (1977) (citing 1974 edition 
of the Manual); D. Federico Co., 3 OSHRC (BNA) 1970, 1971, 1975-76 (1976) (Occupational 
Safety & Health Review Commission: majority citing 1974 edition of the Manual, describing it as 
"[a] highly respected guide for Administrative Law Judges," at 1971, and dissent citing other 
passages from the Manual); Emery Richardson v. Department of Justice, 11 MSPR 186, Docket 
No. SF075281 10018 (1982); Department of Veteran's Affairs, Veterans Administration Medical 
Center, Boise, Idaho (Respondent) and AFGE, Local 1273 (Charging Party/Union), 40 FLRA 
992, Case No. 9-CA-90575 (1991) (ALI decision). 



vi Manual FOR Administrative Law Judges 



regulatory authority over such matters as routes, rates, and licensing in 
industries such as trucking (Motor Carrier Act, Pub. L. No. 96-296, 92 Stat. 
793 (1980)), the railroads (Staggers Rail Act, Pub. L. No. 96-448, 94 Stat. 
1895 (1980)), and natural gas (Natural Gas Policy Act, Pub. L. No. 95-621, 
92 Stat. 335 (1978)). Under the Airline Deregulation Act, Pub. L. No. 95- 
204, 92 Stat. 1705 (1978), route and price regulation in the airlines industry 
met the same fate, and Judge Ruhlen's old agency (the Civil Aeronautics Board 
(CAB)) was phased out. 

These enactments hastened an ongoing evolution in administrative 
law. The number and type of cases decided by administrative law judges had 
already changed drastically between 1946 and the 1980s. In 1946, there were 
fewer than 200 federal administrative law judges (then hearing examiners) and 
60 percent of these were employed by agencies engaged primarily in the 
regulation of routes, rates, and other economic aspects of various industries.* 
After 1982, there were almost 1,200 federal administrative law judges, but 
only about 7 percent of them were in the old-line regulatory agencies. More 
than 90 percent were employed in agencies where contested benefits claims and 
law enforcement adjudications were the norm,^ agencies such as the Social 
Security Administration, the U. S. Department of Labor, the National Labor 
Relations Board, and the Occupational Safety and Health Review Commission. 

Since 1982, the center of gravity for cases decided by administrative law 
judges has continued to shift away from economic regulatory agencies such as 
the old CAB, the ICC, and the FCC.« 

Revisions to Judge Ruhlen's 1982 edition of the Manual were therefore 
needed. In fact, these revisions became somewhat more extensive than 
originally planned. In many respects, it simply was not enough to update 
citations and revise the 1982 text to correlate with current practices. Too many 
changes and too much evolution had occurred since 1982. 

Nevertheless, Judge Ruhlen's 1982 Manual was not necessarily 
obsolete. Although much of the 1982 edition refers to agencies like the CAB, 
and much of it speaks in the immediate context of economic regulation cases, 
the process of judging remains at the center of the book. Complex, multi- 
party cases are not limited to litigation over rates, licenses, and routes. Judge 
Ruhlen still provided a sound point of departure and sound ideas concerning 
how to manage complex, difficult cases. That is where the need for a Manual 
for Administrative Law Judges is most acute. And that is one reason why 



^Lubbers, A Unified Corps of AUs: a Proposal to Test the Idea at the Federal Level, 65 
Judicature 266, 268-69 (Nov. 1981). 

V<f.,at785. 

^Holmes, AU Update: A Review of the Current Role, Status, and Demographics of the Corps 
of Adniinistrative Law Judges, 38 Fed. B. News & J. 202 G^ay, 1991). 



Administrative Conference of the U.S. vii 



special efforts were made, despite considerable revision and updating, to 
preserve much of Judge Ruhlen's text. Moreover, Judge Ruhlen's insights 
into the process of judging can be helpful to many other hearing officers- 
whatever their title and status—who adjudicate and conduct evidentiary 
hearings in federal and state agencies. General principles and techniques can 
be adapted to a wide range of particular statutes, rules, and 
situations. Therefore, this Manual is intended to be helpful to any person 
charged with the duty of conducting an evidentiary hearing. 

Now for the customary acknowledgments and thank yous. (That these 
acknowledgments are traditional in no way reduces the sincerity with which 
they are expressed.) As always, the staff of the Administrative Conference has 
gone out of its way to be helpful and responsive to the needs of the revision 
process. Special thanks are extended to Jeffrey Lubbers, Research Director at 
the Administrative Conference and to Sandra Shapiro of DHHS who served as 
visiting senior executive at the Conference in 1992-93. Several administrative 
law judges have been particularly helpful, and at some risk of inadvertent 
omission, let me mention in particular Acting Chief Administrative Law Judge 
Jose A. Anglada (SSA), Judge Ivan Smith (NRC), Chief Administrative Law 
Judge Curtis Wagner (FERC), and Deputy Chief Administrative Law Judge 
John Vittone (USDOL). Thanks also are in order for Peter Dowd, Director, 
Division of Field Practices and Procedures (SSA), and Judge Moody R. 
Tidwell, U.S. Court of Federal Claims.^ This list would be incomplete, of 
course, without appropriately recognizing Danny R. Williams, a tireless 
research assistant (and third-year student at U of Arkansas Little Rock School 
of Law), Melba Myers for all of that " hurry -up-I-need-it-now" secretarial 
support earlier in this project, and Juaniece Ammons for her help in 
completing it. 



Morell E. Mullins 

Little Rock, Arkansas 

June 1993 



^See infra nole 102, concerning use of the designation "U.S. Court of Federal Claims.' 



PREFACE - 1982 Edition 

Since the Manual was published in 1974, formal administrative law has 
continued to expand and the use and functions of administrative law judges 
have increased. In February 1974 there were 22 agencies employing 792 
administrative law judges; as of June 1981 there were 29 agencies employing 
1119 judges. In addition, the number of administrative law judges in state, 
county, and city governments has continued to grow. 

Recent experience suggests a need for a greater variety in methods and 
practices for the conduct of formal administrative proceedings: for example, 
greater use of voluntary conferences to reach agreement on both major issues 
and trial procedures, stricter time limits for processing a formal proceeding, 
and increased use of summary judgment. In addition, use of telephone 
conferences, multiple witness testimony, and broadcast coverage of hearings 
have increased. 

This Manual discusses and explains some of these changes. It also includes 
a new section on judicial writing which we hope will encourage judges to 
concentrate on making their decisions say what they mean. 

Like the original Manual, the revision was written with "the typical formal 
administrative proceeding" in mind. However, it now includes new sections 
designed for special types of cases, such as short cases with few parties and 
issues, and long technical cases with many parties or issues or both. 

Although the use of administrative law judges has expanded both in the 
federal government and in many state and local governments, the basic 
function remains the same regardless of jurisdiction. Consequently, this 
volume is still limited to general procedural techniques applicable to most 
agencies in all jurisdictions. However, each agency will have its own unique 
problems and procedures which must be handled by that agency's 
judges. Where the number of formal administrative hearings and the number 
of administrative law judges justify it, each agency should establish and 
periodically revise its own formal procedural Manual. 

The staff of the Administrative Conference of the United States has given 
me complete support and help. The substantive and editorial help of Jeffrey S. 
Lubbers and David M. Pritzker was invaluable. 

All of the administrative law judges from whom I sought help went out of 
their way to assist me. A few of those on whom I relied most heavily were 
Warren Blair, Philip T. Brown, Donald Duvall, Lenore Ehrig, William 
Fowler, Jr., Reuben Lozner, John J. McCarthy, Robert Mullin, Joseph 
Saunders, Seymour Wenner, and Ronnie A. Yoder. In addition. Professors 



Manual for Administrative Law Judges 



Frances Peavoy and James Shelton and Judge Walter C. Miller gave me 
excellent editorial suggestions. I also thank my wife, Florence, and Sharon 
Anderson for the essential typing and translation of the original drafts, and 
Patricia Mullins for editorial assistance. 

I also received substantial help from Judge Dyer Justice Taylor of the 
Superior Court of the District of Columbia, and state Administrative Law 
Judges Delphene Strickland of Florida, Lois Smith and Daniel G. Berk of 
Michigan, George A. Beck, Myron Greenberg, and Duane R. Harves of 
Minnesota, and Howard J. Kestin of New Jersey. 

The Office of Administrative Law Judges in the Office of Personnel 
Management, the Federal Administrative Law Judges Conference, the 
American Bar Association Conference of Administrative Law Judges, Paul 
Nejelski of the American Bar Association, and numerous agency staff and 
private practitioners also provided information and assistance. 



NOTE: This preface was prepared by Merritt Ruhlen on April 1, 1982. 



I. Introduction 

Today, the powers and responsibilities of federal administrative law judges 
are defined in the Administrative Procedure Act' and in the enabling acts and 
procedural rules of the various agencies.^ Their powers, duties, and status 
have been considered on several occasions by the federal courts.' 

Historically, however, the need for administrative hearing officers was 
recognized well before the Administrative Procedure Act/ The large number 
of cases where an agency was required, statutorily or constitutionally, to afford 
a hearing impelled federal agency heads to delegate responsibility for 
conducting those hearings to subordinates.' However, these subordinates were 
subject to the direction and control of the agency, and thus perceived as being 
prone to make findings favorable to the agency. Considerations of fairness led 
to granting these hearing officers increasing degrees of independence, 
culminating in the provisions of section 11 of the Administrative Procedure 
Act (APA),* which accords the administrative law judge' a unique status.* 

Although an employee of the agency, the judge is responsible for 
conducting formal proceedings, interpreting the law, applying agency 
regulations, and carrying out the policies of the agency in the course of 



'Administrative Procedure Act, 5 U.S.C. §§551-559, 701-706 set forth, 1305, 1306, 3105, 
3344, 5372, and 7521 (1988 & Supp. II 1990), originally enacted as ch. 324, 60 Sut. 237 
(1946). This Act is in Appendix VI to this Manual. 

^A list of citations to the procedural rules of many federal agencies that conduct adjudicative 
hearings is set forth in Appendix V. 

^See, e.g., Butz v. Economou, 438 U.S. 478 (1978); Ramspeck v. Federal Trial Examiners 
Conference, 345 U.S. 128 (1953); Riss & Co. v. United Sutes, 341 U.S. 907 (1951); Universal 
Camera Corp. v. NLRB, 340 U.S. 474 (1951); Wong Yang Sung v. McGrath, 339 U.S. 33 
(1950); Benton v. United States, 488 F. 2d 1017 (Ct. CI. 1973). 

*See Morgan v. United States, 298 U.S. 468 (1936). For a more detailed historical account, 
see The Federal Administrative Judiciary, 1992 ACUS 771 [hereinafter Federal Administrative 
Judiciary], at 798-803. 

^See Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128 (1953). 

'5 U.S.C. §§3105, 5372. and 7521 (1988 & Supp. II 1990). 

^Tlie title was changed to administrative law judge by United States Civil Service 
Commission regulation on Aug. 19, 1972, 37 Fed. Reg. 16787, and by statute on March 27, 
1978, 5 U.S.C. §3105 (1990). 

^See Ramspeck v. Federal Trial Examiners Conf., 345 U.S. 128, 132 ("a special class of 
semi-independent subordinate hearing officers"). See also, Lx)cal 134, IBEW v. NLRB, 486 F.2d 
863, 867 (7ih Cir. 1973). 



Manual for Administrative Law Judges 



administrative adjudications.' To ensure independent exercise of these 
functions, the judge's appointment is absolute. The judge is not subject to 
agency efficiency ratings, promotions, or demotions; compensation is 
established by the Office of Personnel Management independent of agency 
recommendations,'" and the agency can take disciplinary action against the 
judge only when good cause is established before and determined by the Merit 
Systems Protection Board after opportunity for hearing." 



A. General Overview 

Before considering some specific APA-recognized powers of the 
administrative law judge, a general overview may be helpful. To begin with, 
the administrative law judge is a common feature in formal agency 
adjudications. Whenever the APA applies to a matter that must be determined 
on the record of a trial-type hearing, the proceedings are likely to be conducted 
by an administrative law judge. In fact, the APA is quite explicit. For most 
proceedings required by statute to be determined on the record after notice and 
opportunity for an evidentiary hearing: 

(b) There shall preside at the taking of evidence— 
(1) the agency; 



*rhe discussion in this Manual assumes that the administrative law judge is an employee of 
an agency charged with enforcement and policymaking responsibilities for its substantive 
program. A small number of agencies that employ administrative law judges hear cases 
originating in the enforcement programs of other agencies. For example, the Occupational Safety 
and Health Review Commission (OSHRC) and the Federal Mine Safety and Health Review 
Commission (FMSHRC) are independent agencies that conduct hearings in enforcement cases 
brought by the Department of Labor. Accordingly, some of the discussion in the text dealing 
with the relationship of the judge to the agency is not directly applicable to OSHRC, FMSHRC, 
or similar agencies. 

'°5 U.S.C. §5372 (1988 & Supp. II 1990). Moreover, amendments in 1990 addressed basic 
grades and pay levels of administrative law judges (ALT) and provided that OPM shall determine 
levels of AU positions by regulation. Pub. L. No. 101-509, 104 Stat. 1445, 1446 (1990). 

"5 U.S.C. §7521 (1988 & Supp. II 1990). Among the cases interpreting or applying this 
provision are Benton v. U.S., 203 Ct. CI. 263, 488 F.2d 1017 (Ct. CI. 1973); Association of 
Administrative Law Judges v. Heckler, 594 F. Supp. 1132 (D. D.C. 1984); Goodman v. Svahn, 
614 F. Supp. 726 (D. D.C. 1985); Brennan v. Department of Health & Human Services, 787 
F.2d 1559 (Fed. Cir. 1986), cert. den. 479 U.S. 985 (1986); McEachem v. Macy, 233 F. Supp. 
516 (D. S.C. 1964), ajBTd, 341 F.2d 895 (4th Cir. 1965). For articles, see Rosenblum, Contexts 
and Contents of 'For Good Cause' as the Criterion for Removal of Administrative Law Judges: 
Legal and Policy Factors, 6 W. New Eng. L. Rev. 593 (1984); Timony, Disciplinary 
Proceedings Against Federal Administrative Law Judges, 6 W. New Eng. L. Rev. 807 (1984). 



Administrative Conference of the U.S. 



(2) one or more members of the body which 
comprises the agency; or 

(3) one or more administrative law judges 
appointed under section 3105 of this title. '^ 

Boards, Commissions, or Administrators heading a federal agency do not 
routinely preside over hearings. Therefore, the "norm" for formal evidentiary 
adjudications is to use an administrative law judge. 

However, there is an important exception contained in the relevant 
provision of the APA itself. An administrative law judge is not required if 
some statute other than the APA provides for hearing before an agency 
employee other than an administrative law judge. '^ A recent study has 
indicated that there are a significant number of proceedings where the hearing 
officer is not necessarily an administrative law judge. ''' Still, the 
administrative law judge seems to provide a "model," even in such cases. 
Especially noteworthy, this study pointed out that: (1) such hearing officers 
often are—like administrative law judges—administratively "housed" in 
"independent" organizations separate from the rest of the agency;'^ and (2) 
agencies apparently are willing "to accord these presiding officers a fair degree 
of independence."'* As a practical matter, much of this Manual should 
therefore be relevant to these nonadministrative law judge hearing officers. 

Several other general points regarding administrative law judges (judges, or 
AUs) should be made at this juncture. In most types of cases the judge issues 
either an initial or a recommended decision, orally or in writing." The judge's 
decision is subject to review by the agency (a function sometimes delegated to 
an agency official or to a review board),'* and the agency's decision is in turn 



'^5 U.S.C. §556(b) (1988) (emphasis added). 

"5 U.S.C. §556(b) (1988) ("This subchapter does not supersede the conduct of specified 
classes of proceedings. . .before boards or other employees specially provided for. . .under 
statute.") 

'''Frye, Survey of Non-AU Hearing Programs in the Federal Government, 44 ADMIN. L. 
Rev. 261,264(1992). 

'5/J. at 341-43. 

'*W. at 343. 

"5 U.S.C. §557(b) (1988). In cases involving rulemaking or initial licenses, the agency may 
direct that the judge's decision be omitted and the formal record be certified directly to the 
agency for decision. Id. 

^^See, e.g.. Northeastern Broadcasting, Inc. v. FCC, 4(X) F.2d 749 (D.C. Cir. 1968)(FCC 
Review Board); McDaniel v. Celebrezze, 331 F.2d 426 (4th Cir. 1964) (Social Security & 
Appeals Council); 47 CFR §0.161 (I991)(FCC Review Board); 43 CFR §4.1 (various 
Department of the Interior appeals boards, e.g., Board of Indian Appeals, Board of Land 
Appeals). 



Manual for Administrative Law Judges 



usually subject to review by the courts." The judge's decision can become 
final agency action if review is not directed by the head of the agency or other 
official designated to entertain appeals from the judge's decision.^ 

The administrative law judge is the person primarily responsible for 
developing an accurate and complete record and a fair and equitable decision in 
a formal administrative proceeding. The parties to the proceeding, including 
agency staff, are all subject to pressures and preconceptions that may inhibit 
objective presentation of facts and policies. The reviewing agencies and the 
courts, though independent and objective, have heavy workloads and other 
obligations. They simply do not have the time nor the facilities to investigate 
all aspects of each formal proceeding. This function has come to be the 
responsibility of the administrative law judge. 

Consequently, an administrative law judge has a strong affirmative duty not 
only to try a case fairly and to write a sound decision but to ensure that an 
accurate and complete record is developed. 

In Scenic Hudson Preservation Conference v. Federal Power Commission, 
the Second Circuit stated: 

[T]he Commission has claimed to be the representative of the 
public interest. This role does not permit it to act as an 
umpire blandly calling balls and strikes for adversaries 
appearing before it; the right of the public must receive 
active and affirmative protection at the hands of the 
Commission. . . . 

The Commission must see to it that the record is complete. 
The Commission has an affirmative duty to inquire into and 
consider all relevant facts. ^' 

Although the court was referring to an administrative agency and not 
directly to administrative law judges, the net result is the same. Because the 
agency itself does not preside over the taking of evidence, the judge, as 
presiding officer on behalf of an agency, has the initial responsibility for 



"5 U.S.C. §§701-706 (1988). However, judicial review can be statutorily precluded, at 
least in certain kinds of cases. Lindahl v. OPM, 470 U.S. 768 (1985); Webster v. Doe, 486 
U.S. 592(1988). 

^See, e.g.. 24 CFR §1720.605 (1991)(HUD); 29 CFR §517.511 (1991)(Department of 
Labor, review of AU decisions under Training Wage provisions of the Fair Labor Standards 
Amendments of 1989); 33 CFR §136.305 (1991)(Coast Guard, Offshore Oil Pollution 
Compensation Fund claims). 

2'354 F.2d, 608, 620 (2d Cir. 1965). 



Administrative Conference of the U.S. 



developing an accurate and complete record.^ This may require affirmative 
measures at several stages of a proceeding. The judge certainly should call the 
attention of the parties to gaps in the record and insist that they be filled. The 
judge also may need to question or cross-examine a party's witnesses, ^^ and 
may even call witnesses or raise issues sua sponte upon essential matters not 
covered adequately by the parties.^ The judge may direct the parties to 
discuss in oral argument, in brief, or in special memoranda during the hearing 
any issues or points that are germane, and the judge may direct counsel to 
research a question of law and policy at any time.^ 

If the agency or a court fmds omissions in the record, inappropriate 
procedures, insufficient evidence, or other inadequacies, frequently the case 
must be returned to the administrative law judge for correction or supplemental 
action.^ This, of course, involves additional work, expense, and further 
delay. 



B. Specific APA Powers of the Administrative Law Judge 

Section 556(c) of the APA furnishes a convenient point of departure by 
listing some of the powers and functions an agency may be authorized to 
delegate to administrative law judges.^' Specifically, and in the order listed in 



"^See Marsh v. Harris, 632 F.2d 296 (4th Cir. 1980). See also Federal Administrative 
Judiciary, supra note 4, at 899-901, 904-906. 

^See, e.g.. Beck v. Mathews, 601 F.2d 376 '(9th Cir. 1979); Holland Furnace Co. v. FTC, 
295 F.2d 302 (7th Cir. 1961); NLRB v. International Brotherhood of Electrical Workers, 432 
F.2d 965 (8th Cir. 1970). 

^Examples of this necessary zeal in developing a complete record may be found in the 
opinions of Judge Seymour Wenner in The Permian Basin Rate Case, 34 FPC 159 (September 
17, 1964), and Judge Stephen Gross in the Continental-Western Merger Case, CAB 967, Docket 
33465 (served April 16, 1979), in calling their own witnesses when they found the record 
inadequate. For examples of cases recognizing a hearing officer's authority, zeal or no zeal, to 
protect and develop the record in a fair manner, see also, e.g., Poulin v. Bowen, 817 F.2d 865 
(D.C. Cir. 1987); Fernandez v. Schweiker, 650 F.2d 5 (2d Cir. 1981); Busey v. St. Hilaire, 
1990 NTSB Lexis 20, Order EA-3073, Docket SE-8606 (1990) (recognizing that law judges may 
address, sua sponte, relevant matters which the parties may have overlooked, or deliberately 
ignored). 

^Form 8-a in Appendix I is a sample order directing the parties to research a question of 
law. 

^ See Marsh v. Harris, 632 F.2d 296 (4ih Cir. 1980). See Iran Air v. Kugelman, for a 
discussion of the relationship between the role of the AL) and the role of the agency head. 996 
F.2d 1253 (D.C. Cir. 1993). 

^'However, §556(c) is not limited expressly to administrative law judges. By its own terms, 
§556(c) extends to "employees presiding at hearings,' which are subject to §556 of the APA. 



Manual for Administrative Law Judges 



§556(c) itself, an administrative law judge may: (1) administer oaths and 
affirmations; (2) issue subpoenas authorized by law; (3) rule on offers of proof 
and receive relevant evidence; (4) take depositions or have depositions taken 
when the ends of justice would be served; (5) regulate the course of the 
hearing; (6) hold conferences for the settlement or simplification of the issues 
by the consent of the parties, or by the use of alternative means of dispute 
resolution as provided in subchapter FV of this chapter; (7) inform the parties 
about the availability of one or more alternative means of dispute resolution, 
and encourage use of such methods; (8) require the attendance at any 
conference held pursuant to paragraph (6) of ar least one representative of each 
party who has authority to negotiate concerning resolution of issues in 
controversy; (9) dispose of procedural requests or similar matters; (10) make 
or recommend decisions in accordance with section 557 of the APA; and (11) 
take other action authorized by agency rule consistent with the APA. 

Two important points should be emphasized with respect to this list. First, 
the administrative law judge obviously is in many ways the functional 
equivalent of a trial judge in federal or state court. Receiving relevant 
evidence, ruling on offers of proof, holding conferences, disposing of 
procedural matters, and regulating the course of hearings obviously involve the 
very essence of the judicial function. (Equally obvious, many of the functions 
enumerated in §556(c) require administrative law judges to exercise judicial- 
type discretion and judgment.) 

Second, the italicized passages in the list above emphasize a less obvious, 
but important, aspect of the administrative law judge's role. Recent changes in 
federal law,^ and §556(c) in particular,^ remove any doubt that administrative 
law judges can be authorized to go beyond a narrow or rigid version of the 
judicial role. In a phrase, the changes involve "alternative dispute resolution," 
a topic which warrants separate treatment in this Manual. 



^Administrative Dispute Resolution Act, Pub. L. No. 101-552, 104 Stat. 2736 (1990) (with 
changes to section numbering in Title 5 made by the Administrative Procedure Technical 
Amendments Act, Pub. L. No. 102-354, 106 Stat. 944 (1992)) (codified mainly at 5 U.S.C. 
§§571-83, with codification of miscellaneous provisions in various sections of titles 9, 28, 29, 
and 41). 

^5 U.S.C. §556(c) was amended by §4 of the Administrative Dispute Resolution Act, Pub. 
L. No. 101-552. 104 Stat. 2736, 2737 (1990). 



Administrative Conference of the U.S. 



C. Alternative Dispute Resolution and Administrative Law 



1. General Background 

One of the most significant legal developments during the past two decades 
has been a strong movement toward using alternatives to formal adjudication in 
the resolution of disputes. A term frequently employed to describe this 
movement is "alternative dispute resolution" (ADR or dispute resolution). The 
term itself, ADR, actually is a short-hand label that covers a lot of territory. It 
denotes an open-ended, evolving set of techniques and concepts. It is an 
"inclusive"^ and elastic term, which embraces not only established concepts 
such as negotiation, arbitration, and mediation, but also a growing variety of 
innovations and hybrids.^' As the words themselves imply, perhaps the most 
important common denominator linking various ADR techniques is their 
nature as alternatives— altematiwes to formal litigation as a means of resolving 
disputes. 

The term "ADR" thus eludes precise definition. A wide assortment of 
procedural devices—some of which have not yet been invented—could fairly be 
classified as ADR. As a concept, ADR is still evolving. The main 
qualification for being classified as ADR seems to be that the technique or 
process offers a substitute for formal adjudication. 

Despite the open-ended quality of ADR as a concept, ADR still is 
susceptible to classification and organizing principles of one kind or another. 
One of the typical ways of classifying ADR techniques is to conceive of them 
in terms of a spectrum or continuum of methods, arranged according to the 
degree of control remaining in the hands of the parties.'^ At one end of the 
spectrum are procedures where the parties retain virtually complete control, 
with no input from neutrals or nonparties. Here, we would find the very 
traditional concept of voluntary, unstructured negotiation between (or among) 
the parties. At the other end of the spectrum are procedures where the parties 
surrender control over resolution of the dispute to some third party. There, we 
would find another traditional concept, binding arbitration. With binding 
arbitration, the result of the arbitrator's decision is indistinguishable, as a 
practical matter, from adjudication by a court. Between the extremes is a wide 
range of techniques and devices which, for the most part, share one feature— 



^Administrative Conference, The Administrative Dispute Resolution Act: Guidance for 
Agency Dispute Resolution Specialists 3 (1992) (hereinafter, Guidance for Agency Dispute 
Resolution Specialists). 

^^See L. Ray, Emerging Options in Dispute Resolution, 75 A.B.A. J. 66 (June 1989). 

^^Id. at 67, and Guidance for Agency Dispute Resolution Specialists, supra note 30, at 4-7. 



Manual for Administrative Law Judges 



the intervention of some third party who plays variations on the theme of 
mediation. 

2. Relevance of ADR to Administrative Law Judges 

Even without the Administrative Dispute Resolution Act," ADR would be 
a topic of considerable significance to administrative law judges. If nothing 
else, familiarity with ADR techniques and concepts can help avoid time- 
consuming litigation by enhancing the judge's ability to foster negotiations and 
settlements between parties. Many ADR approaches are quite adaptable and 
fully consistent with agency rules and the organic acts governing particular 
agencies. Certainly, almost all agencies have a policy of favoring appropriate 
settlements as an alternative to formal adjudications. 

A judge therefore may be able to borrow ideas from ADR, adapt them to 
pending cases, and encourage resolution of disputed matters without formal 
adjudication. In a sense, ADR is not just an important and evolving 
assortment of techniques for avoiding formal litigation. It is a state of mind~a 
willingness to entertain alternatives and to reexamine assumptions about formal 
litigation. 

In any event, ADR has become a part of administrative law and a fact of 
life for administrative law judges. However, before discussing the extension 
of ADR into administrative law, it is advisable to discuss some ADR 
techniques and devices. Although the following list is far from complete, and 
does not purport to be exhaustive, it summarizes a number of ADR techniques 
and devices which should be relevant to judges. 

(1) Informal, unstructured settlement negotiations.^ Negotiated 
agreements always have been, and probably always will be, an alternative to 
formal adjudication. No citation is needed to support the fact that most cases 
(upwards of 90% or more) are settled without going to trial. 

(2) Structured case management devices.^^ Although not commonly 
included in ADR taxonomies, and although an extremely broad concept, 
structured case management devices can be used as ADR tools. Within the 
concept of structured case management are such devices as court or agency 
rules which systematically regulate the parties' pretrial preparation. As one 
study has indicated, negotiations and settlements can be facilitated (and formal 
litigation therefore avoided) if the parties are forced, by rule or judge's order, 
to evaluate their own cases. 



^^See text supra accompanying note 28, and infra accompanying notes 70-80. 
^Ray, supra note 31, at 67. 

^^Cf. Administrative Conference, Recommendation 86-7, Case Management as a Tool for 
Improving Agency Adjudication, 1 CFR §305.86-7 (1992). 



Administrative Conference of the U.S. 



[S]ome lawyers. . .seem to find it difficult to squarely face 
their own situations early in the life of a lawsuit. Sometimes 
counsel have difficulty developing at the outset a coherent 
theory of their own case. . . . Sometimes [they] are so 
pressed by other responsibilities that they. . .systematically 
analyze their own cause only when some external event 
forces them to do so.^* 

As one example of ways to force parties to analyze their cases early on, 
rules governing pleadings might require the parties to be specific about the 
factual bases of the allegations contained in the complaint and answer. The 
parties, or at least their lawyers, would then need to examine the case more 
closely, instead of making broad, general assertions in their pleadings, which 
could cover almost any conceivable state of facts. In other words, an agency 
might impose a kind of hybrid fact-pleading on the parties." Or, by rule or a 
judge's order, parties may be required to file a report with the judge 
summarizing their settlement efforts. These types of techniques differ from 
various types of mediation because no judge or third party has personally 
intervened in an effort to mediate directly between the parties. The rules or 
orders themselves impel the parties to focus on their cases, and may even force 
the parties to begin negotiating because they must report to the judge. 

(3) Mediation. Mediation generically is the use of a neutral to help the 
parties reconcile their differences.^ Put colloquially, the mediator is a neutral 
go-between, ideally the proverbial "honest broker." The classic mediator has 
no power at all to impose an outcome or render a decision. In fact, one Code 
of Professional Conduct for Mediators expressly states: "It is the mediator's 
responsibility to assist the disputants in reaching a settlement. At no time 
should a mediator coerce a party into agreement. "^^ Nor is the mediator 



^^Brazil, Kahn, Newman & Gold, Early Neutral Evaluation: An Experimental Effort to 
Expedite Dispute Resolution, 69 JUDICATURE 279 (1986) (emphasis added). 

'^Mullins, Alternative Dispute Resolution and the Occupational Safety and Health Review 
Commission, 5 Admin. L. J. 555, 568-69 (1991). 

'^Guidance for Agency Dispute Resolution Specialists, supra note 30 at 5, and Ray, supra 
note 31, at 67; Administrative Conference of the United Slates, Recommendation 86-3, 
"Agencies' Use of Alternative Means of Dispute Resolution," 1 CFR §305.86-3 (1992) (at 
Appendix-Lexicon of Alternative Means of Dispute Resolution) [hereinafter, Agencies' Use of 
Alternative Means of Dispute Resolution], reprinted in Administrative Conference, SOURCEBOOK: 
Federal Agency Use of Alternative Means of Dispute Resolution 113, 117-8 (1987) 
[hereinafter ADR Sourcebook). 

"Code of Professional Conduct developed by the Center for Dispute Resolution, Denver, 
Colorado, #1, reprinted in Goldberg, Green & Sander, Dispute Resolution 1 17 (1985) (emphasis 
added). 



10 Manual for Administrative Law Judges 



ordinarily bound to follow any set procedures, rules of evidence, agenda, or 
approach. Indeed, an important advantage of mediation is its inherent 
flexibility of form and approach. Unless there are constraints to the contrary, 
a mediator can meet with all parties together, or separately, or at some times 
together and at other times separately. Techniques and tactics can vary.** The 
mediator in one dispute may engage in the equivalent of shuttle diplomacy, 
going back and forth between the parties, communicating offers and 
counteroffers and the mediator's own views. In another dispute, the same 
mediator may insist that all parties sit down together with the mediator and 
engage in some genuine communication with each other. Whatever the 
procedures and tactics may be, the mediator's goal is to help the parties reach 
an agreement acceptable to all of them. 

(4) Conciliation. The distinctions between conciliation and mediation may 
be fuzzy, but at least one lexicon of ADR terminology implies that there is a 
difference in degree between the two concepts. The word "conciliation" is 
used to refer to situations where the neutral must reduce tensions and improve 
communication among the parties "in volatile conflicts where the parties are 
unable, unwilling, or unprepared to come to the table to negotiate their 
differences.""" 

(5) Facilitating. Another first cousin to mediation, facilitating (or 
facilitation) seems to refer to neutrals who intervene procedurally (e.g., to 
conduct meetings and coordinate discussions), but who avoid becoming 
involved in resolving disputed substantive issues. In other words, a facilitator 
concentrates on promoting negotiation and settlement by using procedural 
devices to bring the parties together, but does not intervene actively in the 
substance of the parties' positions or negotiations. '^^ 

(6) Neutral evaluation, or early neutral evaluation. This process, often 
employed early in the course of a dispute, generally entails a neutral factfinder, 
possessed of substantive expertise if needed, who evaluates the merits of the 
parties' cases. The evaluation, often in writing, is nonbinding, but it gives the 
parties an idea of how an objective decisionmaker might perceive the strengths 
and weaknesses of their respective positions. Several courts and the 
Departmental Appeals Board of the U.S. Department of Health and Human 



'^See generally Maggiolo, Techniques OF Mediation (Oceana, 1985). 

*'Ad Hoc Panel on Dispute Resolution and Public Policy, National Institute for Dispute 
Resolution, Paths to Justice: Major Public Policy Issues of Dispute Resolution 36-37 (1983), 
reprinted in ADR Sourcebook, supra note 38, at 44-45. 

*'See Agencies' Use of Alternative Dispute Resolution, supra note 38, in Appendix; Paths to 
Justice, supra note 41 , at 37, reprint at 45. 



Administrative Conference of the U.S. 11 



Services have established early neutral evaluation programs of one sort or 
another.'*' 

(7) Faafinding. This process involves a neutral or a panel of neutrals, 
typically with relevant technical expertise, who make advisory findings of facts 
on disputed matters. Factfinding often involves informal presentation by each 
party of its case to the factfinder(s). After the factfinder(s) render their 
findings, the parties can continue to negotiate.'*'' As one textbook on dispute 
resolution has noted, factfinding by neutral experts has the potential to become 
particularly important in cases where the disputes orbit around complex 
technological, scientific, or other data from specialized fields."^ Rule 706 of 
the Federal Rules of Evidence already allows a federal court to appoint expert 
witnesses on its own motion or on the motion of a party. "^ 

(8) Settlement Judge. The settlement judge is a fairly recent hybrid of 
special interest to administrative law judges. The settlement judge basically is a 
mediator or neutral evaluator."^ What distinguishes the settlement judge from 
other types of mediators and neutrals is the fact that the settlement judge is 
typically an administrative law judge from the agency which is adjudicating the 
dispute."* The settlement judge, simply put, is (usually) an agency 
administrative law judge who is specially assigned to undertake mediation-type 
efforts in an appropriate case, but who is not assigned to decide that case. The 
settlement judge has been described as "an ingenious device,""' because it 
preserves the very real advantages of having a judge actively involved in the 
settlement process, while simultaneously avoiding the problems that could 
arise if the judge who is to decide the case becomes too actively involved in 
settlement negotiations.* Among other things, an agency administrative law 
judge appointed to serve as a settlement judge: (1) is free of constraints such as 
the APA's prohibitions on ex parte contacts;^' (2) brings to the negotiation 
process authority that stems from being a judge; (3) has a familiarity with the 



See Guidance for Agency Dispute Resolution Experts, supra note 30 at 6, and Brazil, 
Kahn, Newman, & Gold, supra note 36. 

^See Guidance for Agency Dispute Resolution Specialists, supra note 30, at 6; Agencies' 
Use of Alternative Dispute Resolution, supra note 38, in Appendix. 

"^Goldberg, Green, & Sander, supra note 39, at 293-98. 

"^Federal Rules of Evidence, Rule 706 (a). 

"'Guidance for Agency Dispute Resolution Specialists, supra note 36, at 6-7. 

*^Id. See also Administrative Conference, Recommendation 88-5, "Agency Use of Settlement 
Judges," 1 CFR §305.88-5 (1992). 

"'Joseph & Gilbert, Breaking the Settlement Ice: The Use of Settlement Judges in 
Administrative Proceedings, 3 Admin. L. J. 571, 573 (1989-90). 

^See Mullins, supra note 37, at 560. 

^'5 U.S.C §§554(d), 557(d)(l988). See also Joseph & Gilbert, supra note 49, at 582-84. 



12 Manual for Administrative Law Judges 



subject-matter that is born of experience in presiding over the agency's cases; 
and (4) has the flexibility of a mediator as to the tactics and strategies that can 
be employed. '2 Among the agencies already using settlement judges are the 
Department of Housing and Urban Development (HUD), the Department of 
Labor (DOL), the Federal Energy Regulatory Commission (FERC), the 
Occupational Safety and Health Review Commission (OSHRC), and the 
Federal Communications Commission (FCC).*^ 

(9) Minitrial. The word "minitrial" is somewhat misleading. A minitrial 
does involve presentations by each party in a hearing-type setting. However, 
the presentations are given before senior officials, of each party, who are 
authorized to settle the case. Thus, a minitrial actually is a structured 
settlement process. Each side, after agreeing on details of the procedure, 
presents a highly abbreviated version of its case to the senior officials, who are 
sometimes aided by a neutral. These senior officials, authorized to settle the 
dispute, can see for themselves how their case and that of the other party (or 
parties) could be perceived at a full-fledged trial, thus providing a basis for 
more realistic negotiations.^ Agencies that have used minitrials include the 
Army Corps of Engineers (contract and environmental disputes), NASA; the 
Department of the Interior; the Department of Energy, and FERC." 

(10) Conference. Although omitted from some lists of ADR techniques, 
the good old-fashioned prehearing or other conference, presided over by a 
judge (or other hearing official), has substantial ADR potential and should not 
be ignored. Unless there are some very good reasons to the contrary, a judge 
holding a conference with the parties should, almost as a matter of routine, 
explore the possibilities for settlement. The APA expressly authorizes 
conferences for the settlement or simplification of issues,^ and agency 
procedural rules typically contain virtual boiler-plate language authorizing 
judges and other hearing officers to hold "conferences for the settlement or 



"5ee Joseph & Gilbert, supra note 49, al 585-86; Mullins, supra noie 37, al 560-61, 591-99. 

"18 CFR §385.603 (1991) (FERC); 24 CFR §104.620 (1991) (HUD); 29 CFR Part 18 
(1993); 29 CFR §2200.101 (1991) (Occupational Safety and Health Review Commission); 47 
CFR §1.244 (1991) (FCC); 48 CFR §6302.30 (1991)(DOT Board of Conlracl Appeals). See 
also General Order No. 13, U.S. U.S. Court of Federal Claims (April 15, 1987). 

See e.g.. Agencies' Use of Alternative Dispute Resolution, supra note 44, in Appendix- 
Lexicon of Alternative Means of Dispute Resolution; Guidance for Agency Dispute Resolution 
Specialists, supra note 36, at 7; Ray, supra note 37, at 68; Goldberg, Green & Sander, supra 
note 39, at 271-78. 

^Guidance for Agency Dispute Resolution Specialists, supra note 30, at 7. 

^5 U.S.C. §556(c)(1988 &. pocket part). 



Administrative Conference of the U.S. 13 



simplification of issues. "^^ Moreover, several agencies have regulations 
explicitly providing, in various contexts, for settlement conferences.^* 

(11) Arbitration. In terms of its practical effect, arbitration is only a step 
or so removed from adjudication. The arbitrator, like a judge, is a neutral 
(supposedly) who is authorized to resolve a dispute between or among parties. 
Generally, the parties will make some kind of presentation to the arbitrator, in 
the equivalent of a hearing. (Also, there may be a panel of arbitrators, rather 
than a single arbitrator.) However, the arbitrator is not necessarily required to 
follow the law books, either substantively or procedurally. The parties 
themselves may select the arbitrator, agree on the procedures to be followed, 
and even determine the criteria for the arbitrator's decision—although much 
depends on the kind of arbitration being conducted. For example, at one 
extreme, the original negotiation of a commercial transaction between two 
parties may result in contractual provisions under which the parties agree to 
submit all (or certain) disputes arising under the contract.*' At the other 
extreme, but quite rarely, one may fmd examples of mandatory arbitration 
being imposed by law on the parties.*" In between, there are any number of 
possible variations on the theme of arbitration, but one key variable is whether 
the arbitration will result in a binding decision or have merely an advisory 
effect.*' 

3. Confidentiality 

There is one crucial aspect to mediation, variations on mediation, and ADR 
in general that must be emphasized, even in a summary treatment of the 
subject—confidentiality. Mediators and other ADR neutrals often communicate 
ex parte and obtain information on a confidential basis. The neutral or 



^''See, e.g.. 13 CFR §134.18 (1991)(Small Business Administration, Office of Hearings and 
Appeals); 16 CFR §3.42 (1991)(Federal Trade Commission, Rules of Practice for Adjudicative 
Proceedings); 29 CFR §417.6 (Procedures for Removal of Local Labor Organization Officers, 
Powers of Administrative Law Judge); 49 CFR §386.54 (1991)(Rules of Practice for Motor 
Carrier Safety and Hazardous Materials Proceedings; Administrative Law Judge). 

^For example, 12 CFR §509.20(b) (1991)(Office of Thrift Supervision, Opportunity for 
Informal Settlement); 14 CFR §1264.1 17(b)(3) (1991)(NASA, Implementation of the Program 
Fraud Civil Penalties Act of 1986, Authority of the presiding officer); 18 CFR §157.205 
(1991)(FERC, Interstate Pipeline Blanket Certificates, Notice Procedure). 

^'Goldberg, Green & Sander, supra note 39, at 190. 

^See 7 U.S.C. §136a(c)(l)(D)(ii) (1988)(regarding arbitration to determine compensation for 
use of data); 29 U.S.C. §1401 (1988)(arbitrating amount of liability for withdrawal from certain 
kinds of pension plans). 

^^See Ray, supra note 31, at 67. The ADR Act authorizes binding arbitration in disputes 
involving federal agencies, but places certain limitations on its use. 5 U.S.C. §§575-581 . 



14 Manual for Administrative Law Judges 



mediator may be told, in confidence, that a party's bargaining position is 
substantially different from what the party regards as an acceptable 
compromise. Without the possibility for confidentiality, the effectiveness of 
neutrals in ADR would be seriously jeopardized. The Administrative 
Conference has summarized this need for confidentiality in a way that hardly 
can be improved upon: 

Most ADR techniques, including mediation, nonbinding 
arbitration, factfinding and minitrials, involve a neutral third 
party who aids the parties in reaching agreement. . . .A 
skillful mediator can speed negotiations and increase chances 
for agreement by holding separate confidential meetings 
with the parties, where each party may give the mediator a 
relatively full and candid account of its own interests (rather 
than its litigating position), discuss what it is willing to 
accept, and consider alternative approaches. The mediator, 
armed with this information but avoiding premature 
disclosure of its details, can then help to shape the 
negotiations in such a way that they will proceed most 
directly to their goal. The mediator may also carry messages 
between the parties, launch 'trial balloons,' and act as an 
agent of reality to reduce the likelihood of miscalculation. 
This structure can make it safe for the parties to talk candidly 
and to raise sensitive issues and creative ideas. . . . 

With all of these neutrals, many of the benefits of ADR can 
be achieved only if the proceedings are held confidential. 
Confidentiality assures the parties that what is said in the 
discussions will be limited to the negotiations alone so they 
can be free to be forthcoming. This need extends to the 
neutral's materials, such as notes and reports, which are 
produced solely to assist the neutral in the negotiation 
process and which others could misconstrue as indicating a 
bias against some party or interest. This is why many 
mediators routinely destroy their personal notes and drafts 
and return all other materials to the parties. *- 

Much mediation would be futile if information imparted in confidence to a 
mediator could be routinely disclosed. However, absolute confidentiality 



*^Adminislrative Conference, Recommendation 88-11, "Encouraging Settlements by 
Protecting Mediator Confidentiality," 1 CFR §305.88-11 (1992) (emphasis added) [hereinafter 
Protecting Mediator Confidentiality]. 



Administrative Conference of the U.S. 15 



cannot be guaranteed, and there are situations where disclosure could be 
required. Of particular significance to federal agencies and judges are certain 
provisions of the Administrative Dispute Resolution Act." These provisions 
prohibit disclosure of information communicated in confidence during dispute 
resolution procedures, unless one or more of the following conditions exist: 

• all participants involved in the communication agree in 
writing 

• the communication has already been made public 

• the communication is required by statute to be made public 

• a court determines that disclosure or testimony is 
necessary to: (1) prevent a manifest injustice; (2) help 
establish a violation of the law; (3) prevent harm to the 
public health or safety. (The "harm" or "injustice" must be 
of sufficient magnitude in the particular case to outweigh the 
impact on the integrity of dispute resolution proceedings in 
general because of reduced confidence of parties in future 
cases that their communications will remain confidential.) 

• a party to a confidential communication made during 
dispute resolution procedures also may disclose a 
communication if: (1) the communication was prepared by 
the party seeking disclosure; (2) the communication is 
relevant to determining the existence or meaning of an 
agreement or award that resulted from the dispute resolution 
proceeding or to the enforcement of such an agreement or 
award; or (3) the communication was provided to or was 
available to all parties to the dispute resolution proceeding. 

It is especially important, in this Manual for Administrative Law Judges, to 
emphasize the confidentiality aspects of much ADR. A judge accustomed to 
presiding over formal evidentiary hearings is likely to have developed a strong 
mindset favoring placing everything on the record and avoiding even the 
appearance of secretive dealings. For formal adjudications this is highly 
appropriate. However, if appointed to serve as a settlement judge or as some 



^^See, e.g., 5 U.S.C. %S1A formerly §584, but renumbered as 5 U.S.C. §574, pursuant to the 
Administrative Procedure Technical Correction Act, Pub. L. No. 102-354, 106 Stat. 944 (August 
26, 1992). See generally Administrative Conference, Mediation: A Primer for Federal 
Agencies (1993). 



16 Manual for Administrative Law Judges 



other kind of mediator, the judge must adapt—sometimes quickly— to the need 
for confidential, even ex parte, communications. 

4. The Extension of ADR into Administrative Law 

Although impetus for the ADR movement originally stemmed from 
discontent with the judicial system,^ extension of ADR into administrative law 
was both predictable and natural. For one thing, agency adjudications 
involving the right to a full evidentiary hearing are all but indistinguishable, 
functionally, from full evidentiary hearings before a state or federal court." 
For another, such formal agency adjudications far outnumber the federal court 
caseload.*^ Quantitatively and qualitatively the net result has been considerable 
""judicialization"" of our administrative law system.*^ As ADR gained 
momentum in state and federal court systems, it was almost inevitable that 
ADR would be transplanted into the federal agencies. 

The extension of ADR to administrative law during the past 10 years or so 
can be summarized with three key words: experimentation, implementation, 
and legislation. During the 1980s various federal agencies experimented with 
ADR techniques and procedures. For example, one early development was the 
application of ADR to government contracting disputes.^ Other agencies and 
kinds of agency actions followed suit, experimenting and implementing.^ 
Then, in 1990, came the legislation. 



^See Edwards, Allemative Dispute Resolution: Panacea or Anathema, 99 Harv. L. Rev. 
668 (1986); Ray, supra note 31; Riggs & Dormincy, Federal Agencies' Use of Alternative Means 
of Dispute Resolution, 1 Admin. L. J. 125, 126 (1987); Sander, The Variety of Dispute 
Resolution, 70 F.R.D. Ill (1976). 

^See, e.g., the APA's provisions for formal adjudications: §§554, 556, 557 (1988). 

*^See, e.g., Schwartz, ADMiNiSTRATrvE Law: A Casebook 43, 45-46 (3d ed. 1988). 

*'Harter, Dispute Resolution and Administrative Law, 29 Viii L. Rev. 1393, 1403, n. 46 
(1983-84). See generally Agencies' Use of Allemative Means of Dispute Resolution, supra note 
38. 

^Crowell & Pou, Appealing Government Contract Decisions: Reducing the Cost and Delay 
of Procurement Litigation with Alternative Dispute Resolution Techniques, 1987 ACUS 1139; 
Crowell & Pou, Appealing Government Contract Decisions: Reducing the Cost and Delay of 
Procurement Litigation with Alternative Dispute Resolution Techniques, 49 Md. L. Rev. 183 
(1990). 

^E.g., Edelman, Carr, & Simon, ADR at the U.S. Army Corps of Engineers, Pou, Federal 
Agency Use of ADR: The Experience to Date, and Robinson, ADR in Enforcement Actions at the 
U.S. Environmental Protection Agency, in Containing Legal Costs: ADR Strategies for 
Corporations, Law Firms, and Government (Fein, ed. 1987); A Colloquium on Improving 
Dispute Resolution: Options for the Federal Government, 1 Admin. L. Rev. 399 (1987) (entire 
issue devoted to this colloquium); Mullins, supra note 37, at 558-59. 



Administrative Conference of the U.S. 17 



In a sense, the Administrative Dispute Resolution Act (ADR Act)^ is a 
culmination of earlier experimentation and implementation, and a further 
experiment." The ADR Act, among other things, requires each federal agency 
to: (1) review its programs and adopt policies addressing the use of ADR;^ 
and (2) designate a senior official as the agency's dispute resolution specialist, 
to be responsible for implementing the ADR Act and relevant agency 
policies.^ The ADR Act also removes any doubt concerning a federal 
agency's authority to use ADR where the parties agree. '^ It also authorizes 
administrative law judges to use or encourage the use of ADR and to require at 
settlement conferences the attendance of parties' representatives who are 
authorized to negotiate concerning disputed issues.'^ The ADR Act also adds a 
new subchapter to Chapter 5 of title 5 of the U.S. Code entitled 
"Alternative Means of Dispute Resolution in the Administrative 
Process."'* Among other things, this new subchapter: (1) provides criteria 
for an agency's use in evaluating the appropriateness of ADR;^ (2) states that 
ADR procedures authorized under the ADR Act are voluntary and 
supplemental;^ (3) goes into considerable detail regarding confidentiality and 
communications which are made during the course of ADR processes;''' and (4) 
contains, again in considerable detail, provisions authorizing and governing 
agency arbitration procedures.*' 

For the foreseeable future, administrative law judges and other agency 
hearing officers will encounter more—not less—emphasis on ADR. Familiarity 
with ADR, as a concept and a process, is likely to become as much a part of 

^"o convey a somewhat more precise picture of the scope of this Act, it should be noted that 
the provisions adding to or amending the U.S. Code will be found at 5 U.S.C. §§571-83 (general 
provisions, defmitions, confidentiality, arbitration); 5 U.S.C. §556(c) (AU authority); 9 U.S.C. 
§10 (arbitration, judicial review); 41 U.S.C. §§604-607 (contract disputes); 29 U.S.C. §173 
(Federal Mediation & Conciliation Service authority); 28 U.S.C. §2672 (tort claims); and 31 
U.S.C. §3711(a)(2) (government claims). Pub. L. No. 101-552, 104 Stat. 2736, as amended by 
Administrative Procedure Technical Amendments Act of 1991, Pub. L. No. 102-304, 106 Sut. 
944 (1992). 

'a sunset provision terminates the ADR Act, with exceptions for pending proceedings, on 
October 1, 1995. Pub. L. No. 101-552, §11, 104 Stat. 2747-48 (1990). 

'^Pub. L. No. 102-552, §3(a). 

^W. at §3(b). 

'"W. at §4. 

'^W. at §4(a), codified at 5 U.S.C. §556(c). 

'*^W. at §4(b). 
T7< 



'5 U.S.C. §572(b). 
'^5 U.S.C. §572(c). 
^5 U.S.C. §574. 
"5 U.S.C. §§575-581. 



Manual for Administrative Law Judges 



the competent administrative law judge's professional qualifications as the 
ability to write a decision or substantive knowledge of the applicable law. 

11. Prehearing Conferences & Settlements 

As soon as a case is assigned, the judge should thoroughly study the 
pleadings (and other filings) in order to assess the need for a prehearing 
conference and the possibilities for settlement. Not every case will require a 
full-blown conference, with all of the features described later in this chapter. 
The issues may be relatively simple, the substantive law or regulations fairly 
specific, and the facts subject to only a limited range of disagreement. In 
many kinds of proceedings, the typical case may need only a simple telephone 
conference call with the parties^' and a brief conference report summarizing the 
matters that were agreed upon. Sometimes, the objectives served by a 
prehearing conference can be achieved by correspondence between the judge 
and the parties, ^^ or by the judge directing the parties to correspond or confer 
by telephone with each other.*' After all, the prehearing conference is a tool-- 
a means to an end, not an end in itself. Prehearing conferences are primarily a 
way to organize the proceedings to achieve optimum productivity and avoid 
wasting time and effort. An effective prehearing conference can be useful in 
identifying areas of disagreement (and agreement), setting a schedule or agenda 
for any pretrial discovery, and taking other steps to lay the groundwork for 
either: (a) settlement, or (2) an efficient, orderly, and fair hearing. Moreover, 
a prehearing conference usually is not limited to any set form or time. Parties, 
agencies and judges can hold conferences of various types, for various 
purposes, at different times during a case. 

The main point is: whatever form it may take, there should be prehearing 
assessment and preparation that is adequate and appropriate to the case. 

Adequacy and appropriateness, however, are not always a simple matter. 
Formal administrative proceedings vary so much in complexity, type and 
number of issues, length of hearing, or other factors, that special prehearing 
procedures may be necessary. The judge may have to devise individually 
tailored procedures to ensure that all parties will receive an equitable and 
expeditious decision. (This may help explain why there seems to be at least 



*'An inleresling booklet, which contains not only valuable suggestions, but also a page of 
additional information sources, is: American Bar Association (Action Commission to Reduce 
Court Costs and Delay), Telephone-Conferenced Conn Hearings: A How-To Guide for Judges, 
Attorneys, and Clerks (1983). 

^See 15 CFR §788. 12(b) (1991)(Depanmenl of Commerce, Bureau of Export 
Administration). 

^•'19 CFR §354.1 l(b)(1991)(Department of Commerce, International Trade Administration). 



Administrative Conference of the U.S. 19 



one common thread running through the mind-staggering number and variety 
of agency procedural regulations dealing with [or mentioning] prehearing 
conferences*^ and procedures. Most of them give considerable discretion, one 
way or another, to the judge or presiding officer.*^) 

Sometimes, the issues and facts are so complex or the number or identity of 
the parties so uncertain that several preliminary steps are necessary before 
evidence even can be obtained. In such situations, the need for a fairly 
elaborate and carefully prepared prehearing conference is obvious. 
Furthermore, in such cases exhibits and other direct evidence often cannot be 
prepared until discovery produces the necessary information or data.** Several 
prehearing conferences ultimately may be needed. The judge must adapt 
procedures to each individual case. 

Because a prehearing conference is one of the most practical and efficient 
methods of starting a complex, formal proceeding, a detailed discussion of 
conferences in such cases follows. It should be emphasized, however, many of 
the tactics, techniques, and concepts described below can be used, or adapted 
for use, in any type of case. Although many cases will not require all of the 
steps and tactics described below, efficient management of any proceeding can 
be enhanced by familiarity with them. Also, it goes without saying that the 
judge always should be alert before, during, and after any conferences—and at 
all times—to the possibility of aiding the parties to settle the case and to the use 
of other alternatives to full-scale litigation. However, rather than belabor 
these points throughout the following discussion of prehearing conference 
procedures, the topics of settlement and alternative dispute resolution will be 
accorded a separate section in their own right, at the end of this chapter. 



In response to a search request on the Lexis CFR database, during March 1992, for the 
term "prehearing conference," Lexis reported 419 "sections." 

**For example, the Department of Agriculture's rules of practice governing formal 
adjudicatory proceedings under various statutes empower the judge, upon motion of any party or 
on the judge's own motion, to "direct the parties or their counsel to attend a conference at any 
reasonable time, prior to or during the course of the hearing," if the judge finds the proceeding 
would be expedited by a conference. The rule also refers, in open-ended fashion, to "Such other 
matters as may expedite and aid in the disposition of the proceeding." 7 CFR §1.140(a)(199I). 
For another example, see 10 CFR §1013. 19(a) (1991)(Department of Energy, Program Fraud 
Civil Remedies and Procedures: "The AU may schedule prehearing conferences as 
appropriate."). 

For a rule which contemplates a prehearing conference even before discovery, see 10 CFR 
§2.740 (l99l)(Nuclear Regulatory Commission, proceeding on application for construction 
permit or operating license for a production or utilization facility). 



20 Manual for Administrative Law Judges 



A. Preparation for Prehearing Conference, With Emphasis 
on Complex, Multiparty Proceedings 

Although a conference serves many purposes, it is almost indispensable as 
a means of organizing a complex, formal, multiparty administrative 
proceeding. A conference in such cases permits joint consideration of various 
procedural matters, such as the need for exchange of information and evidence 
before the hearing, arrangements for stipulations, and the time and place of 
hearing. A well-run conference, requiring only a day or two (compared to 
days or weeks of hearing) will usually ease all succeeding steps. However, 
preparation for the conference is necessary. 

The judge who sets a prehearing conference and goes into it ignorant of the 
pleadings and with no effort to obtain at least some basic information about the 
case is asking for serious trouble—and wasted time. Nor should the judge 
allow the parties to come to the conference unprepared. A prehearing 
conference should not be the participants' introduction to a case. To the 
contrary, all interested persons should prepare for it in advance. The 
conference can be crucial in shaping the course of the later proceedings. It 
should serve as the first opportunity to clarify, isolate, and dispose of the 
problems involved. 

Fortunately, the judge need not, and should not, conduct a personal 
investigation in order to obtain more information about the case. Usually there 
is available at least one important device which can provide information and, 
at the same time, impel the parties to prepare for the conference. The judge 
may direct interested persons to submit to him and to all known parties 
proposed statements of issues, proposed stipulations, requests for information, 
statements of position, proposed procedural dates, and other informational 
material.*^ This direction may appear in the prehearing conference notice or in 
a supplemental letter. 



B. Notice 

In many agencies the judge establishes the date and issues the prehearing 
conference notice.** For complex, multiparty cases, however, there may be 
some problems. For instance, there may be questions concerning who is, or 



^''See, e.g., 1 CFR §1.140 (1991)(Department of Agriculture); 15 CFR §788.12 
(1992)(Department of Commerce, Bureau of Export Administration); 17 CFR 
§201.8(d)(1991)(Securities & Exchange Commission); 43 CFR §§4.824, 4.833 (1991) 
(Department of the Interior). 

**Forms 1-a and 1-b in Appendix I are sample notices of a prehearing conference. 



Administrative Conference of the U.S. 21 



can be, a party. ** Therefore, regardless of minimum legal requirements for 
notice, such as publication in the Federal Register, the public may be best 
served in a complex, potentially multiparty case, if actual notice is given to all 
those with an apparent interest. If particular individuals or associations, few 
in number, are directly affected, they could be notified directly. If a specific 
geographic area is involved, it may be appropriate to notify local governmental 
authorities and civic groups individually. If many persons or groups may be 
interested, or if the identity of interested persons is not known, news media, 
including trade journals, might be used. Frequently, trade or professional 
associations will notify their members through regular or special circulations. 
The judge should use ingenuity to devise ways to notify all interested persons. 



C. Conference Transcript 

Some judges believe that transcribing a conference inhibits frank exchange. 
Whether or not this is so, it is an expense that may be avoided if the judge 
simply records agreements and rulings in notes or by dictation to a secretary or 
into a recorder.* Since the judge ordinarily will provide to the parties a report 
summarizing the outcome of the conference," the need for a verbatim 
transcript may be marginal. 

In complex cases, however, any inhibiting effect is usually outweighed by 
the need to prevent any later dispute about the conference conditions, rulings, 
and agreements, and it is better to have a verbatim transcript. Some agencies 
require an official transcript of prehearing conferences.'^ 



^"^See Office of Communicalion v. FCC, 359 F.2d 994 (D.C. Cir. 1966)(intervention as party 
in license renewal proceedings for commercial television broadcaster). 

For examples of agency regulations which indicate that the judge has discretion on whether 
a transcription of a prehearing conference is to be made, see 7 CFR §1 .140(b) (1991)(Department 
of Agriculture prehearing conference will not be stenographically reported unless so directed by 
the judge); 12 CFR §19.30 (1991)(Comptroller of Currency, "unless the conference has been 
recorded and transcribed"); 15 CFR §788.12 (1991) (Department of Commerce, Bureau of 
Export Administration: administrative law judge may order the conference to be recorded 
electronically or taken by a reporter); 40 CFR §85.1807(1991) (Environmental Protection 
Agency: results of conference, if not transcribed, shall be summarized in writing); 42 CFR 
498.50 (1991) (Health & Human Services, Health Care Financing Administration; record of 
prehearing conference may be transcribed at the request of either party or the AU). But see 24 
CFR §26.21 (1991)(Department of Housing and Development; prehearing conference, at request 
of party, shall be recorded or transcribed)(emphasis added). 

^^See infra, text at note 99. 

^See, e.g.. 10 CFR §2.1021 (1991) (Nuclear Regulatory Commission); 47 CFR §1.248(e) 
(1991) (Federal Communications Commission). 



22 Manual for Administrative Law Judges 



If funds for a verbatim transcript are not available in the agency, major 
parties may agree to divide the cost. In any event, if a transcript is made, the 
judge should ensure that all interested persons can see the agency's copy at its 
offices and obtain copies pursuant to agency rules. 



D. Management of the Conference 

The judge should prepare, and may circulate in advance, a conference 
agenda. Obviously those proposals or suggestions that affect the scope of the 
proceeding should be scheduled first. Although the conference may be 
informal, all remarks should be addressed to the judge, who should permit 
reasonable discussion. However, when a subject is fully aired, the judge 
should rule and move on. 

Most conferences involve at least the following steps: 

1. Opening Statement—The judge should announce the name of the case, 
the tentative agenda, conference procedures, the rights of persons to participate 
in the conference, and other pertinent matters. 

2. Appearances— (Again, it should be emphasized that complex formal 
proceedings often have a number of parties, or would-be parties,'^ 
participating.) Blank appearance sheets should be available, which provide for 
the name and address of the person appearing and the name and the interest of 
each person represented.** The judge should direct that each party or 
interested person notify the reporter, or the judge if no transcript is made, of 
the name and address of one person to whom all documents should be sent. 
For convenience, oral appearances should also be entered. 

3. Preliminary Matters—The judge should permit each participant to 
propose additional items and to raise preliminary matters— for example, an 
inquiry as to the anticipated duration of the conference. 

4. Participation— The judge should rule immediately on requests to 
participate. Even if final rulings as to the right to participate are made by the 
agency, the judge can frequently make a tentative ruling, based on knowledge 
of agency standards, as to each person's right to participate in the conference 
and in the entire proceeding. 

5. Issues— If final determination of the issues to be tried has been made 
before the conference, the conferees may consider the interpretation of the 
issues as framed. The judge should make any necessary rulings. 



^^See 21 CFR §12. 89(a) (1991) (Food and Drug Administration, participation of "nonparty 
participant'). 

Form 2 in Appendix I is a sample appearance sheet. 



Administrative Conference of the U.S. 23 



If, on the other hand, determination of the scope of the proceeding is still 
tentative, the participants may submit any proposals for modification, 
clarification, or limitation. After discussion, the judge should rule, for 
conference-planning purposes, and the conference should continue on that 
basis. (If the agency should later disagree, a further conference may be 
necessary.) 

6. Discovery—In complex cases, an early prehearing conference may need 
to address issues pertaining to discovery. Moreover, the prehearing 
conference itself can serve a discovery role. Each party, including agency 
staff, may request other parties to submit information, including specially 
prepared studies. Disposing of such requests and arranging for the preparation 
and exchange of the evidentiary material are frequently the most difficult 
conference functions. The judge, as well as agency staff, even though well- 
trained, experienced, and familiar with the subject matter, may not be able to 
determine whether objections to producing the requested material are induced 
by its lack of relevance, the burden of producing it, or a party's belief that it 
will be adverse to its interests. Moreover, even counsel for the party from 
whom the material is sought may not know the importance of the requested 
information, its availability, or the difficulty of assembly. 

As difficult as these problems may be, it is preferable to face them at the 
conference. Otherwise they are merely delayed and will still have to be dealt 
with later in requests for subpoenas, depositions, and interrogatories, or by 
extensive correspondence. It is frequently quicker, easier, and more equitable 
to decide these questions after a full informal discussion at the conference than 
it is after formal motions to quash subpoenas or to strike material after it has 
been supplied. Moreover, if the rulings are made at the conference there may 
be time to modify them without delaying the proceeding if later developments 
show that some of the requested material is not necessary or obtainable or 
cannot be assembled as proposed. 

When a party resists requests for necessary information the judge should 
direct that it be submitted. But in considering information requests the judge 
should reduce them to the minimum consistent with obtaining sufficient 
information to decide the issues. Most parties, including agency staff, tend to 
ask for the maximum data available so that they will have more from which to 
choose. The parties may agree to furnish requested material, even though they 
believe some of the data to be irrelevant or immaterial, because they do not 
want to antagonize agency staff or other parties or because the information is 
easily accessible. 

The judge should not acquiesce in this course of least resistance. The 
difficulty in striking trivia at the hearing and in sorting out the important facts 
when deciding the case is compounded if the judge has to examine voluminous 
data that should never have been required or approved at the conference. 



24 Manual for Administrative Law Judges 



The difficulty in determining at the conference what information is needed 
may be mitigated in several ways: (1) agency rules may require that some or 
all of the direct evidence be filed with the application or petition;'^ (2) the 
agency's hearing order may require the parties to prepare and exchange direct, 
and perhaps rebuttal, evidence before the conference;** and (3) the judge at a 
preliminary conference may arrange for the exchange of requests for 
information which, if objected to, will be resolved at a reconvened 
conference.'"' The feasibility and utility of such devices depend on agency 
rules, the nature of the case, the number of known parties or interested 
persons, the extent of divergent interests, and the amount and type of material 
requested. 

7. Exchange of Information and Proposed Evidence—Daites for the 
exchange of information and proposed evidence should be established, with the 
consent of the parties if possible. The time allowed should depend upon the 
nature of the material sought, the difficulty of preparation, the complexity of 
the issues, and the procedural time limits imposed by law or agency regulation. 

Sometimes, in multiparty proceedings, one or more parties or interested 
persons may desire that a document be served on two or more persons in their 
organization, or they may not require some of the material requested by other 
parties. Consequently, the judge may request such persons to state what 
material they need, the number of copies, and the names and addresses of the 
persons to be served. 

The judge's secretary may compile this information to be circulated to all 
parties either as a part of the prehearing conference report or in a separate 
document. 

8. Ground Rules—To supplement the relevant statutes, the APA, and 
agency rules, the judge may establish special rules, frequently called "ground 
rules," for each individual case, covering such matters as order of 
presentation, motions, and cross-examination. It may also be appropriate for 
the judge to decided on rules for electronic submission of information. These 
may be adaptations of rules commonly used by the agency's judges or they 
may be tailor-made for the particular case.^ Such rules may be unnecessary in 



^^See, e.g., 18 CFR §157.5 (1991)(Federal Energy Regulatory Commission); 18 CFR 
§385.601(c)(2)(1991)(FERC). 

^See, e.g., 12 CFR §19.31 (1991)(Comptroller of Currency, prehearing exchange of 
informalion); 29 CFR §2200.51 (1991) (Occupational Safety and Health Review Commission, 
prehearing conferences and orders). For an example of a case, see Blueslone Energy Design, 
Inc., 58 FERC 63,025 (1992), where the Commission refers lo an earlier hearing order directing 
parties to exchange narrative summaries of material points, exhibits, etc. 

^See. e.g., 46 CFR §502.94(c)(1991) (Federal Maritime Commission). 

*Form 3 in Appendix I is a sample set of ground rules. 



Administrative Conference of the U.S. 25 



relatively simple cases with experienced counsel, or the agency's judges may 
have standard rules that are adequate for most proceedings. 



E. Conference Report 

A conference report consisting of a list of appearances, agreements 
reached, the judge's rulings, and other matters decided should, and sometimes 
must , be prepared and served on all persons who entered appearances.'' 

If final determination of the issues to be tried depends on a post conference 
ruling by the agency, then the conference report should include the judge's 
recommendations. If the agency disagrees with the judge as to the issues, and 
modifies them, the judge will have to decide whether another conference is 
necessary. Often the difference can be rectified in a supplemental report. 

Exceptions should be limited to errors of substance. Further argument of a 
point decided at the conference should not be considered unless there are 
unusual circumstances. The judge should rule in a supplemental report on the 
exceptions, or make modifications or corrections. This does not necessarily 
commit the judge to the prescribed procedures; they can be modified later if 
necessary. 



F. Preliminary Motions and Rulings 

All prehearing motions that are within the judge's jurisdiction should be 
decided promptly. Unless the ruling is self-explanatory or is the affirmance of 
a prior ruling, it should include a statement of reasons. '"^ Many motions, 
petitions, and requests can be disposed of without a formal order; a notice or 
letter to all interested persons is sufficient. 



"Forms 4-a, 4-b, and 4-c in Appendix I are sample prehearing conference reports. For 
examples of agency regulations pertaining to the judge's or presiding officer's duty to prepare a 
summary reporting what transpired at a conference, see 10 CFR §2.751a(d) (1991) (Nuclear 
Regulatory Commission, construction permit and operating licensing proceedings); 15 CFR 
§788.12 (1991) (Department of Commerce, Bureau of Export Administration); 49 CFR 
§386.55(1991) (Department of Transportation, Federal Highway Administration). 

'**Form 5 in Appendix I is a sample interlocutory order. 



26 Manual for Administrative Law Judges 



G. Other Prehearing Procedures 

At the risk of being repetitious, it should be emphasized that a full-fledged, 
in-person prehearing conference is not always appropriate. If the issues are 
simple and the parties few, it may be unnecessary; if the proceeding is to be 
held in the field, it may be inconvenient for the AU to fly hundreds of miles 
for a conference. Any number of factors and variables may make a full-scale 
prehearing conference uneconomical or otherwise inadvisable. If actiial 
discussions are needed as to particular points, a telephone conference can 
always be arranged. 

When a conference is not feasible or desirable, other methods to organize 
and expedite a proceeding are available. For example, the judge may by 
written notice suggest the type of evidence needed,'"' or may direct the 
submission prior to the hearing of such material as a list of witnesses, a 
description of the material to be offered in evidence, and proposed 
stipulations. However, if a prehearing conference is not held, the judge should 
at least consult informally with all parties or their counsel prior to the official 
opening of the hearing to discuss and decide on hearing procedures. 

In addition, a procedure formerly adopted by the U.S. Court of Federal 
Claims'"^ provided for the development of information by the parties before the 
hearing without a prehearing conference.'"^ This procedure, which is 
described in the U.S. Court of Federal Claims forms set forth in Appendix I,'** 
appears adaptable to many administrative proceedings. 



""Forms 6-a-c in Appendix I are samples of prehearing orders and instructions to the parties. 

'"^Since the first edition of this Manual, this Court has been variably known as the Court of 
Claims and as the U.S. Claims Court. Since 1992, its official designation is the U.S. Court of 
Federal Claims; this Manual uses the Court's current designation. 

'"^Appendix G of the present Rules of the U.S. Court of Federal Claims still provides an 
excellent model for a judge who wants to ensure that the parties engage in substantial 
preconference development of their cases. Among other things, Appendix G provides for early 
communication between counsel to identify each party's factual and legal contentions, discuss 
discovery needs, scheduling, and possible settlement. It also requires a Joint Preliminary Status 
Report be filed by the parties. This Appendix (G) to the U.S. Court of Federal Claims Rules can 
be found in 28 U.S.C. Appx (Supp. II 1990), and 28 U.S.C.A Rules of the U.S. U.S. Court of 
Federal Claims Appx G (Supp. 1992). 

^^See Forms 18-a through 18-e in Appendix I. 



Administrative Conference of the U.S. 27 



H. Settlement Negotiations and ADR Possibilities 



1. Settlements 

Settlement by negotiation should be considered at every step and stage of a 
proceeding. Depending on such variables as the nature of the issues, the 
parties, and applicable rules, a case might be settled as soon as assigned to a 
judge, shortly afterwards, during any of the usual prehearing procedures, 
during the hearing, at the close of the hearing, before decision by the judge, or 
even between the decision of the judge and the decision of the agency. Subject 
to agency rules, a settlement conference may be organized and conducted by 
the judge, or the judge may organize it and turn it over to the parties for 
action, or the parties may, with or without the judge's consent, hold private 
discussions so long as the rights of other parties or the public are not impaired. 

Whenever it seems opportune, the judge should suggest settlement 
discussions. Sometimes, as the hearing proceeds and the parties hear the 
testimony and learn the facts, they will be more amenable to settlement. This 
applies not only to a full or partial settlement of the case but also to procedural 
questions. Frequently the parties may, after conferences, make important 
factual or procedural agreements. 

The extent to which the judge should participate in settlement negotiations 
depends on agency practice and personal judgment. It is not uncommon for a 
judge to take an active role in such negotiation, especially in enforcement 
cases. However, too much involvement, or too active a role might raise 
doubts concerning the judge's ability to conduct a fair hearing or reach an 
equitable decision if negotiations fail. In such situations recusal might be 
appropriate. 

As indicated earlier in this Manual, '°^ one way to avoid the problems that 
could arise if the judge becomes too active in settlement negotiations is to use a 
settlement judge'"* or some other form of mediator. 

More than 10 years ago, a survey of judges, including Chiefs, at 11 
agencies indicated that, in addition to saving the time, cost, and energy 
involved in a formal hearing, a settlement can neutralize hostilities that might 



^^^See supra, text at notes 47-53. 

'"*For examples of agency regulations pertaining to settlement judges, see 18 CFR §385.603 
(1991) (FERC); 24 CFR §104.620 (1991) (HUD); 29 CFR §2200.101 (1991) (Occupational 
Safety and Health Review Commission); 47 CFR §1.244 (1991) (FCC); 48 CFR §6302.30 
(I991)(DOT Board of Contract Appeals). See also General Order No. 13, U.S. U.S. Court of 
Federal Claims (April 15, 1987), reprinted in ADR Sourcebook, supra note 38, at 371. 



28 Manual for Administrative Law Judges 



be aggravated by litigation.'"' Many of the lessons garnered from that survey 
remain valid today and helped in the development of ADR in federal agencies, 
so it is worth discussing them further at this point. 

The principal questions investigated in the survey were how to persuade 
parties to get together to consider settling their differences (whether 
substantive or procedural), and, once a meeting is arranged, how to get them 
to reach some agreement. 

The survey suggested several ways of encouraging negotiations. Agencies 
could assign judges who are particularly adept at negotiating to handle 
settlement discussions. They could arrange training for judges in how to 
encourage negotiations without compromising their judicial independence. 
Other techniques available to individual judges, even before the ADR Act, 
clearly included the following: 

(1) Directing the parties to meet prior to the hearing to 
discuss settlement. 

(2) Issuing discovery orders requiring the exchange of basic 
facts and documents. 

(3) Holding telephone conferences to discuss settlement 
possibilities. The judge can suggest issues that appear 
amenable to settlement. 

(4) Submitting to the parties and interested persons pretrial 
statements on technical matters at issue, prepared by the 
judge's staff. 

(5) Setting early hearing dates to compel immediate 
consideration of the issues. 

(6) Meeting with the parties shortly before the hearing to 
discuss the case in light of discovery and other prehearing 
developments. 



'°'Coast Guard, Federal Communicalions Commission, Federal Energy Regulatory 
Commission, Federal Trade Commission, Interstate Commerce Commission, National Labor 
Relations Board, Occupational Safety and Health Review Commission, Securities and Exchange 
Commission, and the Departments of Health and Human Services, Interior, and Labor. The 
survey was conducted in 1979 and 1980. See G. Lawrence. Settlement Practices of 
Administrative Law Judges. Unpublished paper submitted to the Administrative Conference of 
th.; United States. (March 18, 1981). 



Administrative Conference of the U.S. 29 



Of course, the use of settlement techniques depends on the type of issues, 
the agency rules, and the personality, attitude, and training of the judge. 
Many cases cannot be settled, regardless of agency procedures or the judge's 
ability. But if the case is of the type in which settlement is possible, the judge 
should support all legitimate settlement efforts. '°* 

2. ADR 

As previously mentioned,'"' federal agency use of ADR increased 
substantially during the 1980s and culminated in the ADR Act of 1990. ADR 
is now—and for the foreseeable future— a subject of considerable significance to 
administrative law judges. For that reason, ADR was described and examined 
in some detail early in this Manual."" 

However, the specifics of each agency's ADR programs are still being 
developed.'" This development probably will be, and certainly should be, an 
ongoing process. ADR is still at an early stage as far as its use in 
administrative agencies is concerned. Indeed, as one article regarding ADR in 
general put it, "[WJe have only begun to identify the kinds of disputes likely to 
be amenable to the techniques of ADR.""- One task for administrative law 
judges will be to aid in realizing the potential of ADR for the administrative 
process. 

III. Discovery 

If authorized by statute and agency rule, the judge may require the parties 
to submit to discovery. This may consist of subpoenas ad testificandum and 
duces tecum, depositions, written interrogatories, cross-interrogatories, 
inspections, physical or mental examinations, requests for admissions, 
production of documents or things, or permission to enter upon land or other 



^^See R. Fischer and W. Ury, GETTING TO Yes--Negotiating Agreement Wn"HOUT Giving 
lN(2ded. 1991). 

'"'^f^ supra, text at notes 64-80. 

"°5<re text supra, at notes 30-80. 

"'5e<r, e.g., 56 Fed. Reg. 64737 (December 12, 1991) (ICC Notice of Proposed 
Rulemaking re: amending rules of practice and issuance of policy statement implementing the 
ADR Act); 57 Fed. Reg 20238 (May 12, 1992) (FCC proposed rule mentioning pilot project) 57 
Fed. Reg. 28701 (June 26, 1992) (Department of Labor notice of amendment to interim ADR 
policy). 

"^Lieberman & Henry, Lessons from the Aliemarive Dispute Resolution Movement, 53 U. 
Chi. L. Rev. 424, 438 (1986). 



30 Manual for Administrative Law Judges 



property, or the preparation of studies, summaries, forecasts, surveys, polls, 
or other relevant materials. 

Discovery rulings may be made if the judge finds it necessary to apply 
compulsion to obtain the necessary information."' Supplemental discovery 
orders may be issued as needed. The judge should be attentive, throughout the 
discovery stage, to the possibility of delay resulting from abuse of the 
discovery process. 



A. Subpoenas 

In some agencies, the judge must issue a subpoena upon request, subject to 
a motion to quash. "^ In other agencies, the judge may refuse to issue a 
subpoena absent a showing of relevance and need."^ In either case, to prevent 
evasion of service, the subpoena usually is granted ex parte and its signing is 
not disclosed until either service has been accomplished or the party who 
obtained the subpoena chooses to disclose it. 

Even if reimbursed for travel expenses and compensated by witness fees, a 
witness who is required to travel far from home will be inconvenienced at best, 
and may undergo severe hardship. Furthermore, subpoenas duces tecum may 
compel the transportation of bulky documents and may deprive a business of 
records and files needed for its daily operation. These burdens should not be 
lightly imposed."* The judge may in appropriate cases, and subject to agency 
rules, shift some of these burdens to the party seeking documents by 
permitting inspecting and copying of them on the premises where they are 
regularly kept. The judge also may encourage agreements between the parties 
providing for the submission of copies of specified material at the hearing, 
subject to verification procedures agreeable to the parties. 

Sometimes subpoenas will be requested for material the judge has 
previously ruled need not be produced. Upon learning of this, the judge 



^^^See Freije, The Use of Discovery Sanctions in Administrative Agency Adjudication, 59 
IND. L. J. 113 (1983); Tomlinson, Discovery in Agency Adjudication, 1 ACUS 37, 571, 577 
(1971); Report in Support of Recommendation [70-4], 1 CFR §305.70-4 (1988). 

^^*See, e.g.. 29 CFR §2200.57 (1991) (Occupational Safely and Health Review 
Commission). 

^^^See, e.g., FCC regulations, 47 CFR §1. 333(c) (1980), and CAB regulations, 14 CFR 
§302.19 (1980). The relevant provision of the APA states: "Agency subpenas authorized by law 
shall be issued to a party on request and, when required by rules of procedure, on a statement or 
showing of general relevance and reasonable scope of the evidence sought." 5 U.S.C. §555(d) 
(1988). 

'"^C/: Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 213 (1946)(dicta). 



Administrative Conference of the U.S. 31 



should deny the request unless it appears that the earlier ruling should be 
changed. It is not usually worthwhile, however, to search the record of a 
lengthy prehearing conference or other prehearing actions to determine 
whether the matter has already been considered. The subpoenaed witness can 
always move to quash. 

Sooner or later a judge will encounter a party who refuses to comply with a 
subpoena. When that happens, the agency probably will have to file an 
enforcement action in federal district court.'" The ensuing litigation can delay 
the agency's adjudication considerably,"* but Supreme Court precedents 
strongly tend toward upholding an agency's subpoenas."' Moreover, the APA 
states, "On contest, the court shall sustain the subpoena or similar process or 
demand to the extent that it is found to be in accordance with law."'^ Once 
the agency's statutory authority to issue the challenged subpoenas is 
established, the subpoenas generally will be found to be in accordance with 
law "if the inquiry is within the authority of the agency, the demand is not too 
indefinite and the information sought is reasonably relevant."'-' 



B. Discovery and Confidential Material 

When it is desirable to have an advance written exchange of confidential 
material, the judge should develop appropriate safeguards to ensure 
confidentiality. The judge may, for example: (1) obtain the commitment of 
the parties receiving the material to limit its distribution to specific persons; 
(2) ask unaffected parties to waive the receipt of certain material; or (3) issue 
appropriate orders. As an additional safeguard, ALL copies of such material 
should bear a prominent legend stating the limitations upon its distribution 
pursuant to the order of the judge. 

In some agencies, such as the FCC or FTC, confidential information, 
particularly material claimed to be proprietary information or trade secrets, 
may be handled by procedures contained in a protective order issued by the 
judge. '^ The need for such an order often arises during prehearing discovery 



'For an example of an agency rule pertaining to enforcement of subpoenas, see 29 CFR 
§2200. 57(d) (1991). 

"^5fe, e.g., FTC v. Anderson, 631 F.2d 741 (D.C. Cir. 1979). 

"'5^^ CAB V. Hermann, 353 U.S. 322 (1957) (production of all books and records covering 
a period of 3 years); United States v. Morton Salt, 338 U.S. 632 (1950). 

'205 U.S.C. 555(d) (1988). 

'2'United Stales v. Morton Salt Co., 338 U.S. 632, 652 (1950), 

'^5ee Exxon Corp. v. Federal Trade Commission, 665 F.2d 1274 (D.C. Cir. 1981). For 
examples of agency regulations related to various protective orders, see 10 CFR §2.734 (1991) 



32 Manual for Administrative Law Judges 



when a party refuses to release material to an adversary party, an intervenor, 
or the agency staff without provision for confidential treatment. The request 
for the order is usually grounded on the claim that unrestricted release of the 
material may result in its misuse, such as unfairly benefiting competitors. To 
guard against misuse of the information the order should provide the terms and 
conditions for the release of the material. It should also contain an agreement 
to be signed by users of the material, and may include procedures for handling 
the material if offered in evidence, including, for example, prior notification to 
the party submitting the material of the intention to offer it as evidence, and 
provisions for sealing the pertinent portions of the record, briefs, and 
decisions.'^ In some situations the judge may find it easier to allow the parties 
to draft a proposed order for signature. 

The judge must realize that protective order procedures could be inimical to 
the concept of a proceeding which is a matter of public record. Consequently, 
extreme care must be exercised in the issuance and application of the order to 
ensure that the integrity of the record is preserved and the rights of the parties 
and the public are duly considered. 

Moreover, the order should make clear that it does not constitute a ruling 
that any material claimed by a party to be covered is in fact confidential and 
entitled to be sealed and withheld from examination by the general public.'^ 



C. Testimony of Agency Personnel and Production of Agency 

Documents 

Testimony of agency personnel and the production of documents in agency 
custody must sometimes be restricted to protect the agency's investigative or 
decisional processes.'^ Consequently, some agencies provide special 

(Nuclear Regulatory Commission); 10 CFR §205.66 (1991) (Department of Energy); 12 CFR 
§308.07 (FDIC, listed among powers of administrative law judge); 14 CFR §13.220 (h) (1991) 
(FAA); 15 CFR §25.24 (Department of Commerce, Program Fraud Civil Remedies); 16 CFR 
§3.31(c) (1991) (FTC). 

'^Forms 19-a— d in Appendix I are sample protective orders. For examples of agency 
regulations related to various protective orders, see 10 CFR §2.734 (1991) (Nuclear Regulatory 
Commission); 10 CFR §205.66 (1991) (Department of Energy); 12 CFR §308.07 (FDIC, listed 
among powers of administrative law judge); 14 CFR §13.220 (h) (1991) (FAA); 15 CFR §25.24 
(Department of Commerce, Program Fraud Civil Remedies); 16 CFR §3.31(c) (1991) (FTC). 

'^''For further discussion of confidential material and administrative proceedings, see text at 
notes 241-47. 

^"^See 5 U.S.C. §552(b) (1988). The cited statutory provision is part of the Freedom of 
Information Act [hereinafter FOIA), which deals with public access to federal government 
records, rather than discovery by private litigants. However, FOIA and discovery pertaining to 



Administrative Conference of the U.S. 33 



procedures applicable to discovery requests, such as requiring that they be 
referred to the agency either initially or upon interlocutory appeal by the 
agency staff. '^ The judge should assure that these procedures are not used 
frivolously or for clearly improper purposes.'-^ 

In Jencks v. United States '^ it was held that the defendant in a criminal 
prosecution has the right to examine all reports in the possession of the 
prosecution that bear upon the events and activities to which a prosecution 
witness testifies at trial. This principle has been extended to administrative 
proceedings in which the agency is an adversary.'^ Some agencies have 
adopted procedural rules specifically directed to the "Jencks" problem.'^ In 
deciding these issues, the judge, to the extent permitted by agency rules, may 
examine the statements in camera. To avoid delay at the hearing the judge 
may require the parties to submit such statements before the hearing. 



D. Reports, Estimates, Forecasts, and Other Studies 

Although most discovery questions that an administrative law judge may 
encounter will be fairly analogous to discovery issues confronting courts, there 
are some situations that have few or no counterparts outside of administrative 
agency proceedings. For instance, historical data, statistical or technical 
reports, forecasts, or estimates may have to be prepared, sometimes by more 
than one party. If so, it is frequently necessary for the judge to establish 
standard bases and time periods. In addition, it is sometimes necessary to 
specify in some detail the manner of preparation— by requiring, for example, 
that the parties use certain specified methods in preparing cost estimates. Use 

government records sought by private litigants obviously are related. At least some cases indicate 
that precedents construing one of the FOIA exemptions are not always irrelevant to issues 
involving discovery. See McClelland v. Andrus, 606 F.2d 1278. 1285, n. 48 (D.C. Cir. 1979), 
Washington Post Co. v. U.S. Dept. of Health & Human Services, 690 F.2d 252, 258 (D.C. Cir. 
1982). 

^"^See. e.g., 16 CFR §§3.23(a), 3.36 (1992) FTC regulations; 49 CFR §511.24 (1992) 
(National Highway Traffic Safety Administration). 

^"^"^See Domestic Cargo-Mail Service Case, 30 CAB 560, 651 (1960). 

'^353 U.S. 657, 672 (1957). The principle of this case, with some modifications, was later 
codified, 18 U.S.C. §3500 (1988). This provision is applicable only to criminal cases. 

'^Great Lakes Airiines v. CAB, 291 F.2d 354, 363-365 (9th Cir. 1961), cert, denied, 368 
U.S. 890 (1961); NLRB v. Adhesive Product Corp., 258 F.2d 403, 408 (2d Cir. 1958); 
Communist Party of the United States v. SACB, 254 F.2d 314, 327-328 (D.C. Cir. 1958). 

^"^See. e.g., 7 CFR §1.141 (g)(iii)(1991) (Department of Agriculture, providing that 
production of such documents "shall be made according to the procedures and subject to the 
definitions and limitations prescribed in the Jencks Act"); 17 CFR §201.11-1 (1991) (SEC). 



34 Manual for Administrative Law Judges 



of such procedures should not prevent a party from supplementing its data with 
similar material in other forms, subject to the judge's discretion. 



E. Polls, Surveys, Samples, and Tests 

As with reports, estimates and forecasts, information may be needed about 
habits, customs, or practices for which little reliable information is available— 
for example, the method of loading trucks, the volume of traffic along a 
particular route, or the percentage of travellers who prefer nonsmoking areas. 
Polls, surveys, samples, or tests may be the most feasible methods of obtaining 
the needed data. These may have been previously prepared by a party or an 
independent source for other purposes or they may be prepared specifically for 
the pending proceeding—either by one or more of the parties independently or 
with the consent and knowledge of the judge and the other parties as a part of 
the prehearing procedure. '" 

Polls, surveys, samples, and tests frequently raise serious questions of 
objectivity and reliability, especially if they have been prepared specifically for 
the proceeding in question. The judge should require the methods by which 
they were produced to be described in sufficient detail to permit a fair 
evaluation of these factors. If a poll, survey, sample, or test is proposed, and 
prior approval is requested, the judge should seek agreement among the parties 
on the methods to be used. The judge may grant such approval, subject to the 
parties having an opportunity to raise objections during the course of the 
hearing. In addition, the judge should ensure compliance with any relevant 
statutes and regulations concerning such surveys. 

IV. Prehearing Techniques for Expediting and 
Simplifying the Complex Proceeding 

The formal administrative hearing often is quite similar to a trial before a 
judge sitting without a jury. One party may have a claim against another, as in 
workers' compensation. Or, a government agency may be proceeding against 
a private party who allegedly has not complied with some law or regulation, as 
in enforcement proceedings under the National Labor Relations Act,'^^ or the 
Occupational Safety and Health Act,'" or any of a large number of other laws 



'^'q: 18 CFR §156.5 (1991) (FERC, Application for Orders under Section 7(a) of the 
Natural Gas Act). 

'^^9 U.S.C. §§151-68 (1988). 
'^^9 U.S.C. §651 elseq. (1988). 



Administrative Conference of the U.S. 35 



under which sanctions can be imposed and violations remedied. Then of 
course there are cases involving claims for benefits or entitlements payable by 
the government, such as Social Security disability benefits or veterans' 
benefits. A word often used to describe such proceedings is "quasi-judicial." 
Typically, these quasi-judicial proceedings are nearly identical to a formal 
adjudication without a jury. Pleadings of some sort— complaint, charge, 
answer, response, etc. —are filed. '^ There are parties and prehearing discovery 
often is available. Witnesses testify orally on direct and cross-examination. 
The judge or other presiding officer usually disposes of the case by a decision, 
ruling, or order, with appeal to higher authority generally being available. In 
fact, the quasi-judicial, formal adjudicative model has been incorporated into 
administrative law and institutionalized by certain provisions of the APA,''^ 
which are triggered, with certain exceptions, by any statute that requires an 
adjudication to be determined on the record after opportunity for an agency 
hearing.'^ 

Very often, these formal agency adjudications are relatively simple cases. 
There may be only a few witnesses; the sanctions may be small money 
penalties; the issues may be fairly straightforward; the hearing may last only a 
few hours, or less. 

However, some formal agency adjudications can be much more 
complicated. Complex issues or several parties with conflicting interests may 
be very entangled. The resolution of a number of legal questions may be 
contingent on disputed facts that are the subject of weeks of testimony and 
volumes of documentary evidence. The substantive statutory law may require 
the agency to apply open-ended criteria, such as "unfair competition," to 
decide whether a fabric of calculated ambiguities, enigmatic business 
strategies, unconventional advertising policies and unusual accounting 
practices amount to "unfair competition." Moreover, some types of complex 
cases are not wholly comparable to our usual notions of adjudications. An 
agency's organic statute may compel the judge, and ultimately the agency, to 
"adjudicate" cases that involve public policy, rather than liabilities for 
noncompliance with the law or entitlements to benefits. To mention only a 
few examples, the agency may have to determine which of several competing 
applicants would better serve "the public interest" in contexts such as granting 
broadcast licenses, providing electric power service to consumers, or 
transportation. 



'^ See, e.g., 29 CFR §§2200. 30-. 41 (1991)(Occupational Safety and Health Review 
Commission). 

''^5 U.S.C. §§554, 556. 557 (1988 & Supp. 10. 
'^5 U.S.C. §554(a) (1988). 



36 Manual for Administrative Law Judges 



Although it would be naive, and misleading, to draw a sharp line between 
"simple," and "complex" cases, the fact remains that there are some cases that 
take more of a judge's time and effort than others. This Manual, like 
everything else, is subject to limitations of time and space. As a matter of 
priorities, a chapter on techniques for expediting and simplifying complex 
proceedings probably will be more worthwhile than a chapter belaboring the 
somewhat more routine type of cases. There is less need for a chapter focusing 
on cases that are short (the hearing lasts a day or less), and involve few issues, 
few parties, few prehearing procedures, few exhibits, and a brief prehearing 
conference over the telephone. Certainly there is no strong need to develop 
special procedures to shorten the simpler hearing to save only an hour or two. 

Complex cases are another matter. They may involve hearings lasting from 
a few days to a month or more, with many parties, many issues, and factual 
questions of enormous difficulty. Typically, much of the testimony is highly 
technical and lengthy, and is submitted in written form prior to the hearing. 
For example, a Federal Energy Regulatory Commission (FERC) adjudication 
may have scores of separately represented parties taking different positions and 
presenting evidence. A typical FERC case may involve disputes concerning 
hundreds of millions of dollars in increased electricity or gas costs. Hearings 
may last 2 or 3 months, with a record well in excess of 10,000 pages.'" 

Moreover, there is an increasing number of cass that, while not extremely 
large proceedings with many parties, are also not small and may involve 
complicated issues. The growing number of civil penalty proceedings is an 
example. While this Manual does not address such types of cases separately, 
judges can certainly draw selectively from the advice aimed here at larger, 
complex proceedings. 

The emphasis in this chapter on complex cases carries no implication that 
the shorter case requires less technical or judicial skill than the complex one, 
or that the judge, regardless of agency or assignments, can competently 
perform the judicial function without being qualified for all types of cases, or 
that the judge trying simple cases has an easier task than the judge trying 
complex cases. The simple case frequently includes questions of credibility, 
the trying of which requires maximum judicial skill and dexterity. 
Furthermore, judges who hear only complex cases may decide only 10 to 25 
cases per year; judges hearing simple cases frequently handle many times that 
number. For example, Social Security Administration judges handle an 
average of 450 cases per year. '^* 



'^^Federal Administrative Judiciary, supra note 4, at 849-50. 

"^Letter dated May 20, 1992 from Acting Chief Administrative Law Judge Jose A. Anglada, 
Office of Hearings and Appeals, Social Security Administration, to Morell E. Mullins, revisor of 
the 1992 edition of this Manual. 



Administrative Conference of the U.S. 37 



Still, for the complex case the judge must try to expedite the proceeding 
while developing a fair and complete record. To accomplish this, several 
procedural tools have been developed for simplifying and managing such 
proceedings. These tools, with minor modifications at different agencies, and 
for different types of proceedings, have been used successfully for many years. 
In addition, more recent innovations in ADR devices and techniques offer 
considerable promise for simplifying the complicated case. 

Examples of possible or proposed improvements in the conduct of complex 
proceedings can take varied forms. More than 25 years ago, a leading 
practitioner advocated techniques for expediting formal proceedings by 
requiring most of the evidence to be submitted in written form, by making 
cross-examination subject to the discretion of the hearing officer, and by 
substituting a conference of lawyers and lay assistants for the formal 
hearing. ''' This approach does not seem to have been adopted completely by 
any agency, although it was suggested at the time that the Civil Aeronautics 
Board, for example, could have done so under then-existing law.'"*' From time 
to time, bills have been introduced to amend the Administrative Procedure Act 
to broaden the circumstances in which agencies may substitute written 
procedures for oral testimony.'"" 

Another innovative approach to complex cases is found in specialized 
procedures conducted by the Nuclear Regulatory Commission (NRC). The 
NRC is statutorily authorized to establish Atomic Safety and Licensing Boards, 
"each comprised of three members, one of whom [is] qualified in the conduct 
of administrative proceedings, and two of whom. . .have. . .technical or other 
qualifications. . .to conduct hearings. . .with respect to the granting, 
suspending, revoking or amending of any license or authorization under the 
provisions of this Act. . . "'''- As of the end of fiscal year 1990, the NRC had 
about 30 individuals who served on its Atomic Safety and Licensing Boards, 
and almost two-thirds of them were nonlawyers holding advanced degrees in 
engineering, physics, public health, medicine, or environmental science.'"^ 



"'Wesiwood, Administrative Proceedings: Techniques of Presiding, 50 A. B.A.J. 659 
(1964). 

"*W. at 662. 

""q: S. 262, 96th Cong., 2d Sess. (1980). It also should be mentioned that SSA AUs often 
decide cases where most of the evidence is in written form, with additional testimony by key 
witnesses. See Anglada letter, supra note 137. 

'^2 42 U.S.C. §2241(a) (1988). Relevant rules of practice governing proceedings before the 
Atomic Safety and Licensing Boards (and other NRC hearing bodies) are published in 10 CFR 
Part 2 (1992). 

'Federal Administrative Judiciary, supra note 4, at 850-51. 



38 Manual for Administrative Law Judges 



When used, the technically qualified members of the Boards can contribute 
technical questions, comments, and observations in the resolution of 
preliminary or procedural matters and in the examination of technical 
witnesses. TTiey take the lead in determining whether a Board has met its 
responsibility to develop a reliable record and in advising the panel when, and 
what type of, additional evidence is needed. The Board can complete the 
record by advising the parties to produce additional evidence on a specified 
matter. Although technical members are not permitted to make a decision 
based on their personal knowledge of the facts, they have a duty to clarify any 
contradictory testimony. This they may do by questioning a witness, calling 
for the production of more testimony, or by calling a Board witness. By the 
use of a hearing panel of this type, an agency has personnel, specially trained 
in all facets of its operations, participating continually in each administrative 
hearing.''" 

Although without legislation other regulatory agencies cannot assign 
persons not qualified as administrative law judges to preside over the taking of 
evidence in formal cases, there appear to be several NRC procedures that could 
be adopted by agencies using administrative law judges. Most agencies either 
have, or have authority to employ, technical assistants such as accountants and 
engineers to assist their judges. Such assistants, if technically qualified, 
should be able to provide the judge in a technical case the same type of 
information that technical members of NRC panels provide. A technical 
assistant might not be permitted to question witnesses and participate directly 
in the hearing, but attending the hearing and advising the judge, on the record, 
during the hearing should present no problems.'"^ 

In a similar vein, it is well-established that an administrative law judge can 
use an independent medical adviser as an expert witness in Social Security 
disability proceedings.''^ And certainly, with the passage of the ADR Act, 
various possibilities, especially the use of expert factfinding and neutral 



'''''Paris, Role of the Scientist in NRC Administrative Proceedings, 20 IDEA, The Journal of 
Law and Technology 357 (1979). See also U.S. Nuclear Regulatory Commission, Statement of 
Policy on Conduct of Licensing Proceedings (CLI-81-8) (May 20,1981). Revisbr's Note: The 
information the text paragraph above, regarding the Board procedures, although based on the 
1982 edition of this Manual, was slightly revised for this edition on the basis of information 
provided to the revisor by Judge Ivan Smith, Nuclear Regulatory Commission, during a telephone 
conversation on March 26, 1992. A written summary of the conversation is in the revisor's files. 

'''^For an article discussing legal and technical assistants to administrative law judges, see 
Malhias, The Use of Legal and Technical Assistants by Administrative Law Judges in 
Administrative Proceedings, 1 Admin. L. J. 107 (1987). 

^^See Richardson v. Perales, 402 U.S. 389 (1971). 



Administrative Conference of the U.S. 39 



evaluation techniques, immediately should come to mind as devices for 
possible use in complex agency proceedings.'''^ 

In addition to using panels, the Nuclear Regulatory Commission developed 
other procedures to improve the hearing process. A brief summary of some of 
those which were used by the Atomic Safety and Licensing Board in the Three 
Mile Island, Unit 1 Restart Proceeding follows: 

1. Lead Intervenor—The intervenors are required to select a 
lead intervenor who consolidates the direct cross-examination 
with the other intervenors and then individually conducts the 
examination of the witnesses. 

2. Cross-Examination Plans-Parties wishing to cross- 
examine on prefiled direct testimony are required to submit a 
plan that is kept confidential by the Board until trial of the 
issue. The plan must be in sufficient detail to inform the 
Board of the points raised and to assist the Board in 
regulating cross-examination. It must specify (a) cross- 
examination objectives, (b) affirmative evidence that the 
cross-examination is expected to produce, and (c) the direct 
testimony that the cross-examination is expected to discredit. 

3. Negotiations— Negotiations, monitored by the Board, are 
required on procedural matters and specification of issues.'*** 

Although procedures such as those described above may expedite the 
development of a complete record, efficiency still is not the only goal. 
Hearings must be conducted fairly and all interested persons who have 
something worthwhile to contribute must have an opportunity to participate. 
Moreover, the most efficient hearing conceivable can be rendered a near-total 
waste of time if this efficiency leads to prejudicial error and a case is reversed 
and remanded because of defective, unfair procedures. The rest of this chapter 
describes procedures and devices that have been used in various agencies for 
facilitating the conduct of complex cases. 



^*^See text supra at notes 30-80. 

'""^Ruhlen, Manual for Administrative Law Judges 22-23 (1982) (citing conversation between 
Judge Merritt Ruhlen, author of 1982 edition of this Manual, and Judge Ivan Smith, Nuclear 
Regulatory Commission, and letter to Judge Ruhlen from Lawrence Brenner, Consulting Legal 
Counsel, Nuclear Regulatory Commission (December 1, 1980)). 



40 Manual for Administrative Law Judges 



A. Written Exhibits in Complex Cases 

The Administrative Procedure Act provides: 

A party is entitled to present his case or defense by oral or 
documentary evidence, to submit rebuttal evidence, and to 
conduct such cross-examination as may be required for a fill! 
and true disclosure of the facts. In rule making or 
determining claims for money or benefits or applications for 
initial licenses an agency may, when a party will not be 
prejudiced thereby, adopt procedures for the submission of 
all or part of the evidence in written form.''" 

Except where credibility or comparable issues are a primary concern, 
preparation and exchange of direct and rebuttal evidence in writing before 
hearing can be beneficial in complex cases. Furthermore, if such exchange of 
evidence is preceded by an exchange of information, subsequent proceedings 
are easier and the duration of the hearing is reduced. To obtain the maximum 
benefit the judge must study the proposed testimony before commencing the 
hearing. 

The following pattern for the exchange of material, within reasonable but 
short time periods, is illustrative: first, each party furnishes information 
requested by others; second, each party submits its proposed direct evidence; 
third, each party submits rebuttal evidence; and fourth, each party submits 
surrebuttal, if any. Usually all parties observe the same exchange dates, 
though this may vary when appropriate. This pattern gives each party an 
opportunity (1) to examine information supplied by others before preparing its 
direct evidence; (2) to study the direct evidence of others before preparing 
rebuttal; and (3) to prepare cross-examination and procedural motions without 
interrupting the hearing or having to study the transcript during recesses. 

Even when the parties cannot be required to submit all evidence in writing, 
they often may agree to present most of it in written form. Experienced 
counsel recognize that the advantages are many and the disadvantages few. 

Oral testimony may be necessary if a witness is hostile or is not under the 
control of the party seeking the testimony, or if new evidence is discovered 
after the exchange of written evidence. 

Written evidence is usually prepared in the form of exhibits, which may 
include narrative statements, testimony in question-and-answer form, tables, 
charts, or other documentary material. Each exhibit, if not self-explanatory, 
should contain notes or narrative to explain its meaning or purpose. Each 



""5 U.S.C. §556(d) (1988). See also Central Freight Lines, Inc. v. United States, 669 F. 2d 
1063 (5lh Cir. 1982) (cross-examination not an absolute right under the APA). 



Administrative Conference of the U.S. 41 



separate document should be given an exhibit number, a symbol identifying 
the party submitting it, and, perhaps, a symbol identifying its subject. Each 
volume of exhibits should include a table of contents or index. If an exhibit 
contains extensive written testimony, it should have a separate index of the 
subjects covered. 

Since the judge must rely on such an index or table of contents when 
preparing the decision or a personal index of the record, the parties should be 
informed that the titles must aptly and precisely describe the contents. The 
parties should be particularly admonished to avoid argumentative titles, or 
"singing titles," as they are sometimes called. 



B. Elimination or Curtailment of Hearing Suspensions 

Emergencies, or unexpected occurrences, sometimes require a suspension 
of the hearing. Counsel or a witness may become ill, an out-of-town witness 
may be delayed, counsel may have to appear in another forum, or it may be 
necessary to enforce a subpoena or other discovery process, or to prepare 
rebuttal or cross-examination with respect to newly discovered evidence. 

Unfortunately, in some agencies the unnecessary or frequent suspension or 
recessing of hearings for substantial periods has become almost a regular 
practice, especially in complicated or multiparty cases. Repeated suspensions, 
each lasting from a week to several months, can cause a hearing to go on for 
years. 

Protracted or frequent suspensions are usually unnecessary. Requests for 
suspensions are frequently based on assertions that additional time is needed 
(1) to prepare cross-examination; (2) to prepare a defensive case or rebuttal 
after hearing the proponent's case; or (3) to devise defensive strategy after 
cross-examination of the adversary's witnesses. 

If a complex, multiparty proceeding is carefully organized in the manner 
outlined in Chapter II, counsel in most cases can complete substantially all of 
the basic preparation before the hearing commences. Delay can be reduced 
and nearly eliminated by such procedures as: (1) requiring inclusion of the 
direct case with the original petition or application; (2) exchanging direct and 
rebuttal evidence before hearing; and (3) using rebuttal experts rather than 
cross-examination to answer expert testimony. The relative merits of cross- 
examining experts as compared with the use of rebuttal experts have been 
discussed in an article by Judge Benkin of the Federal Energy Regulatory 
Commission.'^ 



'^I. Benkin, Is it Bigger than a Breadbox? - An Administrative Law Judge Looks at Cross- 
Examination of Experts, 21 2 Air Force Law Review 365 (1979). 



42 Manual for Administrative Law Judges 



C. Stipulations and Official Notice of Documentary Material 

Stipulations and official notice can avoid much factual presentation. Some 
agencies have provided by rule a list of the documents that will be officially 
noticed.'^' In the absence of, or in addition to, such a list the agency, the 
judge, or both, may announce that official notice will be taken of certain 
specific material, subject to the right of any party on timely request to 
introduce contradictory evidence.'" The parties should be directed at the 
prehearing conference or by written notice to cite specifically any material of 
which they request official notice. 

Parties frequently agree to stipulate to the existence of certain facts or, even 
more often, to the reception of certain evidence without oral sponsorship. In 
multiparty proceedings the judge may have the authority to appoint a 
continuing committee composed of representatives of the parties to consider 
and recommend stipulations. 

The judge's instructions or the agency rules concerning exhibits may 
provide as follows: (1) if a party wishes an exhibit to be received in evidence 
without oral sponsorship, a written request shall be submitted to the judge and ' 
all parties, accompanied by the exhibit in question and by a statement signed 
by the person sponsoring it that it was prepared by or under the sponsoring 
person's direction and is true and correct; (2) within a specified time prior to 
the hearing any party desiring to cross-examine with respect to any such 
material shall give the judge and the parties written notice specifying the 
witness and the exhibit involved and the matters or parts of the exhibit upon 
which cross-examination is desired; and (3) if no request for cross-examination 
is received, the exhibit shall be received in evidence without oral sponsorship, 
subject to objection on other grounds.'" 



D. Intervention and Participation by Nonparties'^" 

In some proceedings only the designated parties and the agency take part— 
for example, proceedings for the revocation or suspension of licenses or 
permits, or for the imposition of civil money penalties. Other proceedings 



'^'14 CFR §302.24(n) (1991) (DOT, Aviation Proceedings); 49 CFR §1 180.4 (1991) QCC). 

'"5 U.S.C. §556(d) (1988). 

^^^See, e.g., 46 CFR §201. 13 1(d) (1991) (DOT, Maritime Administration); 42 CFR 
§1005.8(c)(1992) (HHS, Medicare Fraud Civil Penalty Proceedings). 

^^See ACUS Recommendation 71-6, "Public Participation in Administrative Hearings," 1 
CFR §305.71-6 (1992). 



Administrative Conference of the U.S. 43 



may attract participation by many people~for example, Nuclear Regulatory 
Commission plant siting cases and Interstate Conmierce Commission track 
abandonment cases. An agency may provide for different categories of 
participation: for example, intervention by interested persons wishing to 
become parties to the proceeding, thereby assuming all of the rights and duties 
of parties;'^* or various forms of limited participation by interested persons 
who have insufficient interest or inadequate resources to assume party status.'^ 

Petitions to intervene must be handled expeditiously because persons 
cannot prepare their cases properly until they know their official status. If the 
judge has authority, a ruling should be made promptly; if not, the petitions 
should be immediately referred to the agency.'" Some agencies have specific 
requirements for intervention.'^^ Others have generalized criteria.'*' 

Although it is easier to manage a proceeding if all persons comply with the 
same rules, there are obvious advantages in providing a mode of limited 
participation for persons with limited interests that would be less expensive or 
burdensome than participation as a party. Agencies that allow such limited 
participation typically give the judge substantial discretion as to the scope of 
activity allowed.'** 

The judge should explain the rights of participants to inexperienced or 
uninformed persons, and should devise ways for them to introduce evidence or 
state their position with minimal disruption of orderly procedure. Generally, 



'"5^e, e.g. 14 CFR §§302.14, 302.15 (1991) (DOT Aviation Proceedings); 47 CFR 
§§1.223-225 (1991) (FCC). 

^^^See. e.g., 12 CFR §19.21 (1991) (Comptroller of the Currency, "Limited Participation by 
Nonparties"); 17 CFR §10.34 (1991) (Commodity Futures Trading Commission [CFTC], 
"Limited Participation"); 17 CFR §10.35 (1991) (CFTC, "Permission to slate views"); 17 CFR 
§201.9 (1991) (SEC: "Parties and limited participation"); 29 CFR §2200.21 (1991) (Occupational 
Safety and Health Review Commission: "Intervention: appearance by nonparties"). 

'^^Form 9 in Appendix I is a sample order granting, denying, and dismissing various 
petitions to intervene. 

^^^See. e.g.. 14 CFR §302.15 (1991) (DOT Aviation). 

'*'5ee, e.g., 12 CFR §308. 23(a) (1991) (FDIC; would-be intervenor: (1) has a substantial 
interest relating to the action, (2) the interest may not be adequately represented without 
intervention; (3) intervention will not delay proceeding or unfairly prejudice another party). 

^^See, e.g., 14 CFR §13. 206(b) (1991) (FAA: "The administrative law judge may determine 
the extent to which an intervenor may participate in the proceedings.") 16 CFR §3. 14(a) (1991) 
(FTC: "The Administrative Law Judge or the Commission may permit the intervention to such 
extent and upon terms as are provided by law or otherwise."); 17 CFR §201. 9(d) (1991) (SEC: 
"Leave to be heard . . .may include such rights as a party as the hearing officer may deem 
appropriate. . . .); 29 CFR §2200.21(c) (1991) (Occupational Safety and Health Review 
Commission: "The Commission or Judge may grant a petition for intervention to such an extent 
and upon such terms as the Commission or the Judge shall determine.") 



44 Manual for Administrative Law Judges 



the judge may permit any person to appear, present evidence, submit 
argument, or cross-examine subject to the judge's supervision. A reasonable 
limitation on the number of persons permitted to submit similar evidence or 
arguments may be imposed. The judge may call such persons as witnesses and 
question them to develop facts or their point of view. Or, if there is no 
conflict of interest, or comparable problem, the judge may request agency staff 
to assist such persons or groups. 

In complex, multiparty, multi-issue cases, the judge may be authorized to 
limit the required distribution of documents to those persons who have a direct 
interest in the pertinent issue—subject, of course, to the right of any participant 
to request copies of material distributed to other participants. Interested 
persons or groups with modest resources may be permitted to file copies of 
their documents in the agency's public reference room instead of reproducing 
and mailing them to all parties; or, if the material is extremely brief, it may 
even be read at the hearing without prior delivery to the parties. 

Another possibility is to permit parties with limited resources to submit 
written testimony without being subject to cross-examination. This can 
frequently be done by stipulation. In any event, subject to agency rules, such 
procedure may be authorized on the judge's own motion. Arrangements can 
vary with each case, but the judge should give each interested person as full 
and convenient an opportunity to participate as is consistent with that person's 
needs, the rights of others, and the efficient management of the proceeding. 



E. Joint Presentations 

Persons or groups having the same or similar interests may be encouraged 
to present part or all of their cases jointly, thereby easing the financial and 
work burden of each, saving the time of the other parties, and shortening the 
record. The judge may also encourage such persons or groups to select a 
single counsel to handle their cross-examination. 

In cases of extreme complexity, with many parties, the judge may be able 
to require parties with the same or similar interests to be represented by a 
single counsel, or to join together in presenting a particular phase of their 
case.'*' This may include direct examination, cross-examination, and briefing. 
The judge may permit separate questions or argument about particular matters 
upon request by any counsel who shows a position differing from other 



'^'5ee, e.g.. 21 CFR §15, 2 1(c) (1991) (FDA: "Public Hearing Before ihe Commissioner"); 
40 CFR §124.121(6) (1991) (EPA: presiding officer may require such parties lo choose a single 
representative for purposes of cross-examination); 39 CFR §3001.20a(c) (1991) (Postal Rate 
Commission). 



Administrative Conference of the U.S. 45 



members of the group, or who demonstrates that a request to develop a point 
has been denied by the group counsel. 



F. Organizing the Complex or Multiparty Hearing 

Except in the shorter or simpler cases, the order of oral presentation should 
be established well before the hearing—in the prehearing conference report or 
by other notice. 

The party with the burden of persuasion or proof should usually make the 
initial presentation, followed first by persons in support, second by persons in 
opposition, and then by others, if any. This order may be varied to fit the 
specific case. For example, frequently it is convenient to hear civic or 
consumer groups or individual participants with comparatively short 
presentations first. Or such participants may be permitted to appear at a 
scheduled time even though this interrupts other testimony. In multiparty 
proceedings each category of parties might be heard in alphabetical order or in 
any other convenient sequence. 

Some parties or interested persons may find it impossible, or extremely 
inconvenient or expensive, to be represented at all sessions of the hearing. 
This is particularly true in lengthy and complicated cases with multiple issues, 
some of which are of no interest to certain participants. 

While a party and counsel are responsible for protecting the party's interest 
at all times, the judge should take reasonable action, consistent with 
adjudicatory responsibilities, to prevent the absence of the party and counsel 
from prejudicing the party's interest. Any person's scheduling problems may 
be called to the attention of counsel and counsel may be requested to take 
reasonable action to keep such persons informed as to the progress of the 
hearing. Usually the most that is involved is counsel's telephone call. Counsel 
will frequently oblige out of professional courtesy. 

Major changes in scheduling, such as recalling a witness or having an 
additional day of hearings, will often inconvenience other parties. In some 
instances, however, the judge may be able to make minor changes, such as 
recessing a hearing early and advising counsel to be present at the next session 
so that counsel can hear the pertinent testimony. The judge should encourage 
reduction of these problems by informal agreement among counsel—for 
example, agreement that certain issues will not be pursued on certain days or 
that upon request counsel will advise an absent party when a specific matter 
will be presented. 



46 Manual for Administrative Law Judges 



G. Special Committees 

When numerous parties or persons enter appearances it may be possible, 
and advisable, to designate a representative for each identifiable group to 
discuss with the judge and other parties interim or emergency procedures. 
Through a committee of such representatives, the judge or any party may 
communicate with each group to obtain its viewpoint or position. If any 
person objects to this procedure and does not wish to be represented, it is 
usually a simple matter to give him personal notice. 



H. Telephone or Videophone Conference 

Conferences can be conducted either by telephone or videophone. Such a 
procedure is specifically authorized at the Federal Communications 
Commission. "'^ It can eliminate the expense and inconvenience of travel or the 
delay of correspondence. It is also helpful when immediate access to data at a 
party's home office is desirable. 

The use of telephone conferences has increased rapidly.'" Although it may 
not be a practical means of conducting a large conference with many parties or 
numerous issues, such as a prehearing conference in a complicated rate or 
route case or a merger, it may save much time and travel in a case with simple 
issues or few parties. It may also be helpful and save time in complicated 
cases when a party has a simple procedural question. For example, when a 
postponement is requested, a party by a telephone call to the judge may initiate 
a telephone conference with representatives of the principal parties in order to 
solve a problem that would require weeks of correspondence or numerous 
telephone calls. 

Videophones have seldom been used for conferences. With improved and 
simplified technology, and the prospect of increasing travel costs, it is 
probable that the use of videophone conferences will increase.'^ 



'*^47CFR §1.248(0 (1991). 

^^See Hanson, Mahoney, Nejelski, and Shuart, Lady Justice-Only a Phone Call Away, 20 
Judges' J. 40 (No. 2, Spring 1981), and accompanying notes on personal experiences with 
telephone conferences. For some practical guidance, see the ABA's booklet, Telephone- 
Conferenced Hearings: A How-To Guide for Judges, Attorneys, and Clerks (1983). For a case 
upholding procedures where the actual hearing was conducted by telephone conference, see 
Casey v. OBannon, 536 F. Supp. 350 (E.D. Pa. 1982). 

'^ Bulkeley, Eye Contact: The Videophone Era May Finally Be Near, Bringing Big Changes, 
Wall. Si. J., March 10, 1992, at 1, col. 6. 



Administrative Conference of the U.S. 47 



If telephones or videophones are used the judge is responsible for 
maintaining a precise record. At a minimum, the judge should insist that 
participants state their names each time they speak and that all documents 
referred to be clearly identified. 



I. Additional Conferences 

Additional conferences, if needed, may be called at any time. These serve 
the same purposes as the original prehearing conference, as well as to rectify 
or revise procedures that have broken down or to cope with new problems. 
Sometimes an additional conference may be scheduled at the opening of the 
hearing; but if further prehearing preparation is likely to be needed, the 
conference is best scheduled a reasonable time before the hearing. 



J. Trial Briefs or Opening Statements 

Some cases, particularly complex ones, can be facilitated by trial briefs 
stating the principal contentions of the parties, the evidence to be presented 
and the purposes for which it is submitted, the names of the witnesses, and the 
subjects each witness will discuss. Such briefs may also present the results of 
research the judge has requested on legal or technical problems. The judge 
may instruct each party to include in the brief any procedural motions and 
requests, such as motions to bar proposed written evidence. In lieu of or in 
addition to the trial brief, the judge may require, or p6rmit, an opening 
statement by counsel. 



K. Interlocutory Appeals 

The rules of some agencies prohibit an immediate appeal from an 
interlocutory ruling without the judge's permission and a finding that the 
allowance of an appeal is necessary to prevent substantial detriment to the 
public interest or undue prejudice to any party.'" Strict application of this rule 
prevents unnecessary delay, avoids consumption of the agency's time on minor 
procedural matters, and saves the time and labor of the persons who would 



^^^See, e.g., 49 CFR §821.16 (1991) (NTSB). For a facially absolute prohibition, see 15 
CFR §904. 253(c) (1991) (Department of Commerce, National Oceanic and Atmospheric 
Administration: "No interlocutory appeal lies as to any ruling not certified by the Judge."). See 
also ACUS Recommendation 71-1, "Interlocutory Appeal Procedures," 1 CFR §305.71-1 (1992). 



48 Manual for Administrative Law Judges 



have to participate in the appeal.'" Such rulings are subject to review when 
the case is before the agency for review on its merits.'*^ Other agencies, 
although not always requiring an affirmative finding by the judge that an 
appeal is desirable, may impose such restrictions as to make permission of the 
judge and affirmative findings necessary except in a few specified 
circumstances.'* 



L. Mandatory Time Limits 

To speed up administrative proceedings, Congress by statute,'**' and some 
agencies by regulation,'™ have sometimes imposed time limits for completion 
of some or all of the steps in formal administrative proceedings. Rigid time 
limits often have undesirable consequences, but when imposed they do provide 
participants early notice of the time available and they also provide the judge 
with authority and support for the imposition and enforcement of deadlines. 
This authority, of course, can be used to expedite and streamline complex 
cases.'" 

The Administrative Conference of the United States, long familiar with the 
delays involved in complex administrative proceedings, considered this 
problem in 1978.'^ At that time it found that rigid statutory time limits tended 
to undermine an agency's ability to establish priorities and to control the 
course of its proceedings, and that such limits enabled outside interests to 
impose their priorities upon an agency through suit or threat of suit. 

The Conference recognized, however, the value of time limits for reducing 
administrative delay and recommended that time limits should be established 



'"Form 7 in Appendix 1 is a sample submission lo the agency of an appeal from an 
interlocutory ruling. 

^^^See 5 U.S.C. §557(b) (1988) (reviewing agency has all powers it would have had if it had 
made the initial decision, subject lo agency's own rules or orders). 

^^See, e.g., 16 CFR §3.23(a) and (b) (1991) (FTC); 17 CFR §10.101 (1991) (Commodity 
Futures Trading Commission). 

^^See, e.g., 19 U.S.C. §1337 (1988); 19 CFR §§210.41(e), 210.53(a) (1992), (USITC). 

^"^See, e.g.. 17 CFR §10.84(b)(1992) (CFTC); 16 CFR §3.51 (1992) (FTC). 

'"5^^, e.g., 5 CFR §1201.173(0(1) (1992) (Merit Systems Protection Board: "Because of 
the short statutory time limit for processing these cases, parties must file their submissions by 
overnight Express Mail. . .if they file their submissions by mail."); 29 CFR §525.22 (1991) 
(Department of Labor, Wage & Hour Division: "Because of the time constraints imposed by the 
statute, requests for postponement shall be granted only sparingly and for compelling reasons."). 

'^E. Tomlinson, Report on the Experience of Various Agencies with Statutory Time Limits, 
1978 ACUS Recommendations and Reports 119; ACUS Recommendation 78-3, "Time Limits on 
Agency Actions," 1 CFR §305.78-3 (1992). 



Administrative Conference of the U.S. 49 



by the agencies rather than by statute. It advised, further, that if Congress 
does enact time limits, it should recognize that special circumstances may 
justify an agency's failure to act within a predetermined time, and it should 
require agencies to explain departures from the legislative timetable in current 
status reports to affected persons or to Congress. '^^ 

Although statutory time limits may hinder the efficient and fair processing 
of some cases, and may be impossible to meet in others, the judge should, if 
possible, adopt procedures and rules which meet these deadlines. The judge 
should always keep accurate records of the steps involved and any difficulties 
encountered that will explain any failure to meet time limits. Such information 
can be of value to the agency or the Congress in appraising both agency 
performance and the appropriateness of time limits. 



M. Summary Proceedings 

Delays in the administrative process can be avoided by eliminating or 
curtailing evidentiary hearings when no genuine issue of material fact exists or 
when the factual evidence can be submitted in written form. 

The Administrative Conference of the United States has recommended the 
adoption of procedures providing for summary judgment or decision.""' The 
Conference's recommendation contains a model rule that was adopted nearly 
verbatim by several agencies, including the Commodity Futures Trading 
Commission,''^ the Federal Communications Commission'^* and the Federal 
Trade Commission.'" Other agencies, including the Consumer Product Safety 
Commission,'™ the Environmental Protection Agency, ''' and the Interstate 
Commerce Commission'*^ have rules that substantially comply with the ACUS 
recommendation. In fact, provision for summary decision is quite common in 
agency regulations.'*' 



"3w. 

"^Recommendation 70-3, "Summary Decision in Agency Adjudication," 1 CFR §305.70-3 
(1992). 

"^17 CFR §§10.91-10.92 (1992). 

"*47CFR §1.251 (1991). 

'"16CFR §3.24(1992). 

"*16CFR §1025.25 (1992). 

'^40 CFR §§164.91, 164.121 (1992). 

'*'49 CFR §§1 100.43-. 52 (1992). 

'*'j<?f, e.g., 10 CFR §2.749 (1991) (Nuclear Regulatory Commission); 21 CFR §12.93 
(1991) (FDA); 29 CFR §1905.41 (1991) (Department of Labor, variances from safety and health 
sundards); 29 CFR §2570.67 (1991) (Department of Labor, Pension & Welfare Benefits, 



50 Manual for Administrative Law Judges 



Moreover, explicit agency regulations may not be absolutely necessary. 
Although the Federal Energy Regulatory Commission's rules did not 
specifically authorize the judge to use summary proceedings, the Commission 
ruled that under the judge's powers to control a proceeding and to dispose of 
procedural matters there was authority to rule on motions for summary 
judgment.'*^ Thus, the Federal Energy Regulatory Commission's precedents 
suggest that, unless specifically forbidden, a judge could use this procedure 
under general powers to control a formal proceeding.'*^ 

Judges handling cases amenable to summary disposition may benefit from 
consulting the appropriate provisions of the Federal Rules of Civil Procedure 
and referring to Professor E. Gellhom's discussion of the summary decision in 
his report to the Administrative Conference of the United States in support of 
the Conference's recommendation.'*" 



N. ADR 

It almost goes without saying that ADR and the authority of agencies 
created by the ADR Act'*^ will offer even more opportunities for judges to 
streamline all sorts of difficult and complex cases. The judge now can be 
authorized, among other things, to hold conferences addressing the use of 
ADR procedures, to encourage the use of ADR methods, and even to require 
attendance at conferences by representatives of parties who have the authority 
to negotiate concerning the resolution of issues in controversy.'** ADR's 
potential for expediting and simplifying complex proceedings has barely been 
tapped. Techniques such as mediation, neutral evaluation, the settlement 
judge, minitrials, and arbitration'*^ will become available in various 



assessment of civil penalties); 29 CFR §2700.64 (1991) (Federal Mine Safety and Health Review 
Commission). 

'*^MinnesoU Power & Light Company, Docket No. ER78-425 (March 26, 1979); and Texas 
Eastern Transmission Corporation, 10 FERC 1|63,068 (April 30, 1980). 

'*^5ee Costle v. Pacific Legal Foundation, 445 U.S. 198 (1980) (request for hearing did not 
set forth material issues of fact). 

'*"5ee E. Gellhom and W. Robinson, Summary Judgment in Administrative Adjudication, 84 
Harv. L. Rev. 612(1971). 

'*^5ee text supra, at notes 28, 64. 

'*'5e<? text supra, at notes 27-29. 

'*'5ee supra, text at notes 34-61 . 



Administrative Conference of the U.S. 51 



agencies. '^ Ingenuity and innovation will suggest new hybrids. There will be 
challenges, as in the past, to adapt to changing circumstances. There will also 
be opportunities once more to demonstrate how versatile and valuable 
administrative law judges, as an institution, can be. 

V. Hearing 

A. Preparation 

1. Notice 

A notice of hearing complying with statutory requirements and agency 
rules should be served upon all parties.'^' In addition, statutory provisions or 
agency rules may require notice to be published in the Federal Register.'* 
Even though responsibility for notice may fall on agency staff, the judge 
should personally make certain that all legal requirements are complied with 
and that all persons who participated in the prehearing conference or who 
requested notice receive actual notice. 

2. Place of Hearing 

The APA, with respect to formal adjudicative hearings, provides expressly 
that "due regard shall" be paid to the "convenience and necessity of the 
parties" in fixing the place, and time, of hearings.'" Accordingly, the judge 
should consider holding the hearing in the field if anyone suggests it. Agency 
rules and unavailability of travel funds may override the judge's willingness to 



^^See, e.g., 48 CFR §6302.30 (1991) (DOT Board of Contract Appeals; states that Board 
has adopted two ADR methods, Settlement Judges and Minitrials); 57 Fed. Reg. 28701 (June 26, 
1992) (Department of Labor, Notice of amendment to interim ADR policy; regional pilot test 
program using in-house mediators, trained by Federal Mediation & Conciliation Service, in a full 
range of cases); 57 Fed. Reg. 20238 (May 12, 1992) (FCC; pilot project applicable to all 
proceedings before FCC). 

'Forms 10-a and 10-b in Appendix I are examples of notices of hearing. 

'*For examples of regulations regarding publication of notice in the Federal Register, see 7 
CFR §1200.5 (1991) (Department of Agriculture); 10 CFR §2.104 (1991) (NRC); 16 CFR §3.72 
(1991) (FTC, Reopening); 21 CFR §1301.43 (1991) (DrtJg Enforcement Administration, 
application for bulk manufacture of Schedule I and II substances); 40 CFR §179.20 (1991) (EPA, 
Formal Evidentiary Public Hearing). 

"'5 U.S.C. 554 (b) (1988). 



52 Manual for Administrative Law Judges 



hold field hearings. (However, agency rules quite commonly track the APA 
with respect to the place of hearing. )"2 In the absence of budget constraints or 
clearly applicable agency rules, factors to be considered are the convenience of 
interested persons, the suitability of the hearing facilities involved, and the 
locations of the parties and witnesses. Sometimes, when several geographical 
areas are affected or interested persons have different places of business or 
interest, it may be desirable to hold sessions in two or more places. In some 
agencies such as the Social Security Administration and the Occupational 
Safety and Health Review Commission, the problem of travel is reduced by 
stationing judges in the field. Even so, the judges of such agencies frequently 
travel in order to hold hearings at sites convenient to the parties and witnesses. 

In agencies where field hearings are not fairly routine, the site of the 
hearing often is an ad hoc matter. Especially in such agencies, another factor 
to be considered is the nature of the parties. For example, if a private party is 
seeking a lucrative privilege or a benefit such as a license, it may be fair to 
place the travel burden on the party. However, if the agency threatens 
imposition of a sanction or withdrawal of a license, it may be more equitable 
to hold the hearing at the place requested by, or convenient to, the respondent. 

An early determination of the place of hearing benefits all parties. If a 
prehearing conference is held, the judge should announce the time and place of 
hearing either at the conference or in the conference report. If no conference 
is held, the announcement is made in the Notice of Hearing. In cases where a 
field hearing is scheduled, the hearing may, where appropriate, be publicized 
in the local communities affected.''^ 

3. Hearing Facilities 

Comfortable and functional hearing facilities are of real assistance in 
developing an accurate record. Most agencies have satisfactory hearing 
facilities at their home offices. Moreover, the judges of agencies that 
commonly hold field hearings may develop and share an extensive network of 
contacts with governmental and nongovernmental bodies that can provide 
suitable hearing facilities. However, locating and obtaining such facilities still 



^'^See, e.g., 7 CFR §47. 15(c) (1991) (Departmeni of Agriculture, reparation proceedings); 
10 CFR §2.703 (1991) (Nuclear Regulatory Commission, domestic licensing proceedings); 14 
CFR §13.55 (1991) (FAA); 29 CFR §18.33 (Department of Labor); 29 CFR §2200.60 (1991) 
(Occupational Safety and Health Review Commission, "as little inconvenience and expense to the 
parties as is practicable"; 49 CFR §821.37 (1991) (NTSB, air safety proceedings). 

^"^^See 7 CFR §900.4 (1991) (Department of Agriculture, proceedings for marketing orders); 
7 CFR §1200.5 (1991) (Department of Agriculture, proceeding under research, promotion, and 
education programs); 29 CFR §523.5 (1991) (Department of Labor, press release 5 days before 
hearing); 40 CFR §142. 33(a) (1991) (EPA, drinking water, newspaper of general circulation). 



Administrative Conference of the U.S. 53 



may be difficult, especially for a judge whose agency rarely holds field 
hearings. There are several potential sources of information about hearing 
facilities: other federal administrative law judges; the offices of hearings and 
appeals of various federal agencies; local and regional offices of various 
federal agencies; state administrative law judges or hearing officers (especially 
those in agencies such as workers' compensation); and state agencies 
themselves. These are only some of the sources that may provide information 
helpful in locating hearing facilities. Another source of information about 
hearing facilities is the regional office of the GSA Public Building Service, or 
the manager of a federal building in the area where the judge contemplates 
holding the hearing. 

If all else fails, the judge may be able to obtain adequate facilities by 
making arrangements directly with a local college, school, library, civic 
association, hotel, or any other public or private organization with satisfactory 
facilities. Counsel or interested persons in the area may provide assistance. In 
some agencies the staff arranges for the hearing room subject to the judge's 
approval. 

The judge should inspect the hearing room a substantial time before 
opening the hearing, if possible, to check the heating or air conditioning, 
lighting, furniture arrangement, seating facilities, and the public address 
system. The furniture should be arranged so that everyone in the room can see 
and hear the witnesses, and the reporter can see and hear the judge, the 
witnesses, and counsel. 

The judge is responsible for the hearing room and furniture, and should 
take care to maintain them in the condition in which they are received. The 
judge should remind participants to refrain from unauthorized use of 
telephones that may be found in the hearing facilities. Smoking or eating in 
the hearing room should be prohibited whether or not the hearing is in session. 
If night or weekend sessions are contemplated the judge should make necessary 
arrangements for opening and closing the room. If parties must leave 
documents overnight in the hearing room, the judge should arrange for 
overnight security. 



B. Mechanics of the Hearing 

There is no rigid script for a formal administrative hearing, although 
traditionally the party with the burden of proof makes the first presentation. 
Still, the organization and form depend upon such factors as agency rules, the 
type of case, the issues, the number of parties and witnesses, agency custom, 



54 Manual for Administrative Law Judges 



and the temperament of the judge. The one universal criterion is the 
development of a fair, adequate, and concise record. 

A formal administrative hearing should possess substantially the same 
formality, dignity, and order as a judicial proceeding. It should move as 
rapidly as possible, consistent with the essentials of fairness, impartiality, and 
thoroughness. 

1. Transcript 

Formal proceedings are recorded verbatim.'** The reporter may use 
shorthand, stenotype, or any other recording device. (In some agencies, the 
rules may authorize or contemplate tape recording, rather than stenographic 
reporting."') 

Agency rules and policies vary considerably when it comes to the cost of 
transcripts to a party or other interested person. In many agencies, copies of 
the transcript are made available at rates established by the agency, although 
some agencies have provisions for furnishing a copy without charge. "* Daily 
copy may be available, but at a substantial premium if the reporting is done by 
a private company. Pursuant to the Federal Advisory Committee Act, an 
agency, subject to certain exceptions, may be required to make copies of the 
transcript available to any person at actual cost of reproduction.'" In addition, 
agencies can make copies of transcripts available for inspection at the agency 
offices."^ 

Since an accurate transcript is essential, the judge should seek to ensure 
faithful reproduction. With an unfamiliar reporter, it may be desirable to have 
material read back early in the hearing to determine its accuracy. Before 
opening the hearing the judge should supply the reporter with the names of the 
parties and counsel, their physical location in the hearing room, and any other 
information that will help the reporter identify the participants. The reporter 
should be stationed where the judge, witnesses, and counsel can be easily 
heard. The reporter should be told to notify the judge if there is a need to 



^"^SeeS U.S.C. §556(e) (1988). 

^^^See 38 CFR §19.170 (1991) (Board of Veteran's Appeals); 40 CFR §24.16 (1991) (EPA, 
hearings on interim status corrective action orders). 

^'^See, e.g., 10 CFR §2.750 (1991) (Nuclear Regulatory Commission: payment may be 
waived "for good cause"); 20 CFR §416.1565 (1991) (Social Security Administration: in certain 
SSI proceedings, payment may be waived "for good cause"); 34 CFR §81.18 (1991) (Department 
of Education, General Education Provisions Act: transcript to be recorded, transcribed, and made 
available "to the parties upon request at no charge"). 

^'"See 5 U.S.C. App. 1, §11 (1988). See also Administrative Conference Recommendation 
71-6, "Public Participation in Administrative Hearings" CFR §305.71-6 (1991). 

^^See, e.g., 47 CFR §1.202 (FCC) 



Administrative Conference of the U.S. 55 



change tapes, an inability to hear the parties, personal fatigue, or some other 
difficulty that might interfere with obtaining an accurate transcript. However, 
the reporter should not interrupt the proceeding except for such reasons. 

Upon request and subject to agency rules, counsel may be permitted to 
record the hearing for personal use, provided the recording is done 
unobtrusively. However, the transcript is the only official record of the 
hearing. 

2. Convening the Hearing 

The judge should convene the hearing, announce the title of the case, and, 
if appropriate, give preliminary instructions concerning decorum, procedure, 
and hearing hours. The opening should, of course, be adapted to the type of 
case and the circumstances. When all interested persons are represented by 
knowledgeable and experienced counsel the opening statement can be brief. 
But if counsel or interested persons who are not acquainted with the agency's 
hearing procedure are present, the judge should explain in detail what the case 
is about and the procedures to be followed. 

Appearances should be entered in the same manner as at the prehearing 
conference,"' Ideally, any preliminary motions of substance should have been 
addressed and decided prior to commencement of the actual hearing. 
However, where this is not feasible, the judge, after appearances are entered, 
should receive and either dispose of or take under advisement, any preliminary 
motions. Motions relating to hearing procedures should normally be disposed 
of immediately. 

Each witness should be sworn before testify ing.^°° If a person testifies 
before being sworn, the oath can be modified to cover testimony previously 
given. 

In a case with few witnesses, all or most of whom are present at the 
opening of the hearing, it sometimes saves time and is more convenient to 
swear all potential witnesses in a group at the opening of the hearing. If some 
do not testify, no harm is done. Witnesses not present at the opening of the 
hearing can be sworn later. 



^"^See lext supra al notes 93-94. 

^*^rhe following oath or affirmation is sufficient: "Do you solemnly swear (or affirm) that 
the testimony you are about to give is the truth, the whole truth, and nothing but the truth (so help 
you God)?" 



56 Manual for Administrative Law Judges 



3. Trying the Simple Case 

Again, the distinctions between simple and complex cases often are matters 
of degree. However, such distinctions provide a framework for organizing a 
discussion. 

a. Opening Statement 

Before the parties present their direct cases the judge should give counsel 
an opportunity to make an opening statement setting forth the relief requested, 
a short description of the evidence to be submitted, and a short summary of 
other relevant matters. The judge may require all statements to be made at the 
opening of the hearing, or may permit each counsel to make a statement when 
presenting the direct case. Opening statements should not be subject to 
questioning except for clarification. 

b. Direct Presentation 

The judge should call upon each party to present its case in a predetermined 
order. In two-party cases it is customary to call on the party having the 
affirmative position, if such distinction exists, to present the case first. 

The rules of evidence in formal administrative hearings will be examined in 
more detail later in this Manual. However, for the purpose of discussing the 
relatively simple case, it should be noted that in many federal administrative 
proceedings the Federal Rules of Evidence do not apply. ^' However, there 
are exceptions.-^ Moreover, even if the Federal Rules of Evidence are not 
applicable by agency rule, they may provide guidance for filling in gaps, and 
in situations where the judge has discretion in conducting the hearing. For 
example, when the witness is friendly and there is a question of credibility, it 
may be advisable for the judge to hark to the rule restricting leading 
questions. ^^ 

Some of the procedures for admission of exhibits that are discussed later, in 
connection with the complex case, may not be applicable in a simple case. 
Still, reference to that section may be helpful in addressing some of the 
difficult questions pertaining to the presentation and receipt of evidence. For 
present purposes, it should be noted that even in a "simple" case the judge 
should use prehearing conferences or other devices to lay the groundwork for 



^^See. e.g., 10 CFR §1013.34 (1991) (Department of Energy, Program Fraud Civil 
Remedies and Procedures). 

^-For one exception, see 29 CFR §2200.71 (1991) (Occupational Safety and Health Review 
Commission). 

^"^Fed. R. Evid.6n. 



Administrative Conference of the U.S. 57 



smooth, professional handling of exhibits and other evidence. Agency rules 
may provide expressly for exchange of proposed exhibits prior to the hearing 
or similar procedures.^ Moreover, when problems of authenticity are 
involved, and agency rules are not dispositive, the judge may be able to give 
substantial weight to Federal Rules 901-903. 

c. Cross-examination 

In proceedings involving more than two parties, it is frequently 
advantageous to permit that party who has the most substantial adverse interest 
to cross-examine first. Otherwise the order of cross-examination may be 
prearranged at the judge's discretion, perhaps in consultation with the cross- 
examining parties. 

On matters of credibility the judge should be alert to prevent both coaching 
the witness (indicating the answer desired by a nod or other signal) and the 
interruption of cross-examination by distracting objections or otherwise. On 
the one hand, the judge may permit more wandering, illogical, and perhaps 
less relevant questioning if counsel is in good faith attempting to get 
information from a recalcitrant or possibly dishonest witness. On the other 
hand, the judge may find it desirable to let objecting counsel know that 
frivolous objections are counter-productive, or to defer a recess or to refuse to 
go off the record. If witnesses are sequestered, it is necessary to prevent 
witnesses who have not testified from talking to witnesses who have. This can 
frequently be accomplished by extending the length of the session to avoid 
overnight or other lengthy recesses. Also, it goes without saying that the judge 
should be alert to protect a witness and the record, if the witness is 
unsophisticated, unfamiliar with courtroom procedure, timid, or suffering 
from any other personal trait or handicap that would make for vulnerability to 
the questioning of a clever or forceful lawyer. The judge should ensure, as 
much as possible, that the record reflects the witness' actual observations and 
viewpoints. 

When cross-examination by all adverse parties is concluded, the judge 
should permit redirect examination on matters brought out on cross- 
examination. 

If there is more than one party in an otherwise simple case, each party in 
turn should try its case in the manner outlined above except that each party 
should, during or at the conclusion of its direct presentation, rebut the case of 
any party that has previously presented its direct case. Each party should be 



^'^See, e.g.. 7 CFR §15.113 (1991) (Department of Agriculture: Nondiscrimination); 28 
CFR §68.44 (1991) (Department of Justice: Unlawful employment of aliens and related 
employment practices); 29 CFR §18.50 (1991) (Department of Labor). 



58 Manual for Administrative Law Judges 



permitted to rebut the cases of those parties that followed it in making their 
direct presentations. 

The judge should usually excuse a witness whose testimony is concluded, 
subject to recall pending later developments at the hearing. 

d. Miscellaneous 

Administrative proceedings conducted under particular statutes, types of 
regulations, or agency customs may present special problems that call for extra 
alertness and ingenuity on the part of the judge. For example, in Social 
Security claims cases the agency is not represented and the claimant often 
appears without counsel.^'' Although these cases are not normally considered 
adversary proceedings, they do require a delicate sense of fairness and an extra 
effort by the judge to ensure that the record is fully developed and that the 
claimant is fully aware that the judge is treating both the agency and the 
claimant fairly and impartially. Indeed, courts have remanded cases for further 
hearing when administrative law judges have not met their special obligations 
in cases involving unrepresented claimants. ^''^ 

The unrepresented party presents several problems that are more likely to 
be encountered in the "simple" cases, and the judge often needs a high order 
of skill to deal with the inexperienced pro se party. For instance, the pro se 
party may never have been in a hearing room or courtroom before. The judge 
is sometimes caught between complying with the mandate of reviewing courts- 
-take the unrepresented party's circumstances into consideration—and the 



'"^However, the number of cases where a claimant is represented seems to have increased 
substantially in the last several years. As of 1992, the rate of claimants represented by an 
attorney apparently is over 80%. Letter from Acting Chief Administrative Law Judge, dated May 
20, 1992, to Morell E. Mullins, revisor of the 1992 edition of this Manual. Moreover, it is not 
beyond the realm of possibility that the agency may seek, directly by legislation or indirectly by 
other means, to have legal representation at some hearings. Cf. Sailing v. Bowen, 641 F. Supp. 
1046 (W.D. W. Va. 1986). 

^''^The Ninth Circuit has staled that: "When a claimant is not represented by counsel, the 
administrative law judge has an important duty to scrupulously and conscientiously probe into, 
inquire of, and explore for all relevant facts and he must be especially diligent in ensuring that 
favorable as well as unfavorable facts and circumstances are elicited." Cruz v. Schweiker, 645 
F.2d 812 (9th Cir. 1981). See also Sims v. Harris, 631 F.2d 26 (4ih Cir. 1980). A more recent 
case is one of several that continues to follow a similar philosophy by referring to the ALJ's duty 
to probe and explore relevant facts if a claimant is unrepresented by counsel and disabled. Poulin 
V. Bowen, 817 F.2d 865 (D.C. Cir., 1987). The heightened duty toward unrepresented 
claimants was emphasized in a recent case where the Merit Systems Protection Board's Chief AU 
referred to a Social Security Administration ALJ's "special duty to protect the rights of a pro se 
claimant." SSA v. Anyel, Docket No. CB7521910009T1 (MSPB Jan. 16, 1992) (recommended 
decision of ALJ). 



Administrative Conference of the U.S. 59 



simple fact that the unrepresented party may be difficult to control. This party 
may present the volatile combination of a weak case and strong feelings about 
the righteousness of his or her cause. Furthermore, claims cases occasionally 
involve conflicting claimants with strong personal animosity towards each 
other. A relatively small amount of benefits sometimes generates more ill-will 
and hard feelings than larger sums. Also, the judge often must make special 
efforts to calm witnesses who are frightened or confused, and must be prepared 
to cope with intemperate outbursts and, perhaps, even physical violence. 

In enforcement cases, the problems may be even more acute. The pro se 
party who is the subject of civil penalty or other proceedings brought by a 
federal agency, such as the Occupational Safety and Health Administration, 
may be quite angry. Even worse, the pro se party may have a yen to "play 
lawyer," but is handicapped by misunderstanding, fostered by the distortions 
of the popular media, about what lawyers do, and how they do it. 

Other problems may arise in the "simple" case, even when a party is 
represented by counsel. For example, in enforcement cases, there is often a 
real need for an agency to protect sources of information, to develop evidence 
from hostile sources, and to prevent possible fabrication of rebuttal testimony. 
Use of some of the procedural devices previously discussed, such as prehearing 
discovery, may be modified or curtailed in such agencies, such as the National 
Labor Relations Board. In cases of this nature, devices similar to some of 
those described below, such as in camera inspection of documents,^' may be 
helpful. 

4. Trying the Complex Case 

In addition to the suggestions set out under Convening the Hearing and 
Trying the Simple Case,"^ there are several techniques that the judge handling 
a complex case may find useful for developing a relatively concise, but 
complete and fair record. Applicability will depend on such variables as the 
type of case, the issues, the number (and possible grouping) of parties, and the 
place of hearing. Each case requires tailoring. A boiler-plate script or 
customary format may not be possible or desirable because of the great variety 
of types of cases heard by administrative law judges in different programs and 
different agencies. 

Nevertheless, the following discussion may be useful for arranging and 
organizing a hearing in a complex case. This discussion assumes that written 



^''See text infra, at notes 241-247. 
^^See text supra, at notes 198-206. 



60 Manual for Administrative Law Judges 



testimony, both direct and rebuttal, has been exchanged a substantial period of 
time before the hearing commences.^"' 

a. Direct Presentation 

In complex cases, the judge by prehearing order (or the agency rules) may 
have laid the groundwork for introduction of exhibits. If not, it may be 
desirable to hold a preliminary admissions conference, before the hearing, at 
which the parties identify their proposed exhibits, objections of opposing 
counsel are received, and the judge rules on the admissibility of challenged 
portions. 

If written testimony has been exchanged as part of the prehearing 
development of a case, each party should be called upon in a predetermined 
order to present its entire case, including all rebuttal evidence. Counsel may 
be required or permitted to make an opening statement, which is not subject to 
cross-examination, though the judge and counsel may ask questions. 

Normally counsel should present any exhibits for identification, and should 
specify which exhibits will be sponsored by each witness and the order of 
presentation. Counsel should then call the first witness whose qualifications 
should then be established. Counsel should have the witness sponsor the 
relevant exhibits-'" (if sponsorship is needed) and commence direct 
examination. Testimony regarding exhibits may be confined primarily to the 
correction and clarification of exhibits and to matters that have occurred since 
the exhibits were prepared. Exhibit material should not be summarized, 
repeated, or read. Following direct examination, counsel should offer the 
witness' exhibits in evidence before the witness is released for cross- 
examination. 

In the event that cross-examination on any exhibits has been waived, 
counsel may, following their identification, simply offer them in evidence.^" 



^'^'por examples of agency rules that contemplate exchange of written testimony or 
summaries, see 14 CFR §302. 24(c) (1991) (Department of Transportation, Aviation Proceedings: 
"Evidence shall be presented in written form by all parties wherever feasible. . . ."); 18 CFR 
§385.601 (1991) (FERC). For a rule that contemplates that all evidence at the hearing will be in 
written form unless the presiding officer directs otherwise, see 40 CFR §124.85 (1991) (EPA, 
evidentiary hearings for EPA-issued NPDES permits and EPA-terminated RCRA permits) 

^'*rhe sponsoring question may be phrased as follows: "Were exhibits prepared by 

you or under your control and supervision, and are they true and correct to the best of your 
knowledge and belief?" 

^"For examples of agency rules contemplating the prehearing development of questions such 
as on authenticity, see 7 CFR §15.113 (1991) (Department of Agriculture, Hearings under Civil 
Rights Act of 1964); 12 CFR §308.33(c) (1991)(FDIC); 24 CFR §2.74 (1991) (HUD); 29 CFR 
§18.50 (1991) (Department of Labor). 



Administrative Conference of the U.S. 61 



They should be received, subject at any time to any objection other than lack 
of oral sponsorship. 

b. Receipt of Exhibits 

When exhibits are offered, the judge should consider motions to strike. 
The judge should take careful note of the material objected to and the basis of 
objection. When all objections have been received, the judge should announce 
what testimony (not otherwise objected to) is deemed improper, giving 
reasons. Counsel for the witness should be permitted to reply. The judge 
should weigh the arguments, perhaps during a short recess, and rule on the 
admissibility of all challenged portions. 

Factual exhibits are sometimes interlaced with argumentative, redundant, 
and inconsequential material. Rather than take the time to go through the 
procedures outlined above and to examine the exhibits word by word or line 
by line to strike such matter, it is frequently quicker, easier, and more 
satisfactory for the judge to announce that such material will not be 
considered, and that attempts to cross-examine on it are unnecessary and will 
be stricken. Unless the exhibit is substantially lacking in relevant material or 
is so argumentative as to obfuscate the record, opposing counsel will usually 
acquiesce. 

The primary advantage of considering motions to strike at the outset is that 
it eliminates cross-examination on inadmissible evidence. Objectionable 
material, if admitted, frequently generates the most cross and redirect 
examination. Additional motions to strike may be entertained at any time 
based on further developments at the hearing. 

The reporter should mark each exhibit "Received" or "Rejected" pursuant 
to the judge's ruling. Ordinarily, excluded material should not be physically 
removed but should accompany the record with the notation "Rejected". This 
material is not a part of the record and cannot be considered by the agency 
except to rule on the validity of its exclusion. Counsel should be directed to 
delineate stricken portions on all copies of the exhibit submitted for the record. 

c. Cross-examination 

Rules concerning cross-examination usually are an important part of the 
ground rules that are established by the judge at the prehearing conference and 
included in the conference report.-'- Whether by ground rules or otherwise, 
the judge should establish that order of cross-examination which will develop 
the most concise and clear record. This frequently cannot be determined until 



See text supra, at notes 98-99, and Appendix I, Form 3,18. 



62 Manual for Administrative Law Judges 



the direct examination has been completed. Ordinarily priority is given to that 
party likely to have the most extensive cross-examination or who has the 
greatest interest in the direct testimony. 

Unless witness credibility is involved, cross-examination is frequently 
confined to clarifying the exhibits, determining the source of the material, and 
testing the basis for the witness' conclusions. As stated previously, one writer 
has suggested that the major rebuttal of expert opinion testimony should take 
place not by cross-examination but by submission, prior to the hearing, of 
rebuttal testimony prepared by the opponent's experts.-'^ In any event, when 
cross-examination with respect to opinion testimony is needed in an attempt to 
demonstrate inconsistencies or improbabilities, the judge should not let the 
examination degenerate into mere rhetoric. The judge also may find it helpful 
to gently remind counsel that there is no jury present. 

Cross-examination should be limited to matters covered on direct unless 
there are special reasons for further questions. A departure may be justified, 
for example, if a party is seeking to elicit from the witness information that 
cannot readily be obtained in any other way, or if limiting the testimony would 
result in the witness being recalled later. 

Although usually only those parties adversely affected by a witness' 
testimony should be permitted to cross-examine, special circumstances may 
make it appropriate to deviate from this practice. For example, counsel 
representing a community that favors an application should be permitted to 
cross-examine an applicant's witnesses if the applicant shows only mild 
interest in, and makes a weak factual presentation in support of, an application 
in which the affected community has an important interest. 

Generally, counsel should not be permitted to interject questions during 
cross-examination by other counsel. However, like all general principles, this 
is subject to exception, especially where counsel is intervening in good faith 
for the sake of clarification and the clarification would clearly save substantial 
time. 

d. Rebuttal Testimony 

As previously stated, rebuttal testimony ideally could be included in the 
party's original presentation, especially where parties had originally exchanged 
written testimony. However, the ideal is not always possible. For example, 
agency rules may not allow a judge to require full exchange of written 
testimony prior to the hearing. Or, the case may be of a type that is not 
susceptible to that kind of approach. Moreover, additional rebuttal evidence 
may become available after the hearing begins. If rebuttal evidence later 



See text supra, at note 149. 



Administrative Conference of the U.S. 63 



becomes available, or if another party later presents new material that requires 
some response, additional rebuttal, either oral or written, certainly may be 
permitted. If the rebuttal is extensive, a short suspension of the hearing or a 
temporary withdrawal of the witness may be necessary to permit counsel to 
prepare for cross-examination. 

e. Redirect 

Following cross-examination, redirect should be permitted, confined to 
matters brought out on cross-examination. A short conference between 
counsel and his witness may be allowed. 

f. Multiple Witness Testimony 

Sometimes the testimony can be clarified, expedited, and simplified by 
placing more than one witness on the stand at the same time.-^'" A panel of two 
or more witnesses is called to the stand. Counsel for the witnesses qualifies 
them individually, and may question them individually or collectively 
depending on the material covered and the circumstances. Following direct 
examination the panel may be cross-examined. Questions may be directed to 
the panel and answered by the witness or witnesses having the pertinent 
information, or the witnesses may be questioned individually, with counsel 
choosing the witness to answer the question. The possibilities are numerous. 
Following cross-examination, the panel may be subjected to redirect 
examination. 

At the former Civil Aeronautics Board the judges used this device for many 
years. ^'* Technical information was presented by a panel of two or more 
witnesses, each qualified on a different aspect of the evidence. Cross- 
examining counsel, uncertain about whom to direct a particular question to, 
would ask the question, and the witness having the pertinent information 
would answer. This procedure proved quicker and made a cleaner record than 
examining the witnesses seriatim with the frequent necessity of repeating 
previously unanswered questions and for recalling an earlier witness. 

Similar procedures have been used by the Department of Labor, with 
panels of as many as eleven witnesses, and by the Federal Energy Regulatory 



^'^P. Nejelski and K. Shuart, Trial Balloon-^ls Multiple Witness Testimony Worth a Try?, 7 
LrriGATiON Magazine 3 (Winter 1981). 

^'^uhlen, Manual FOR Administrative Law Judges 47 (Adnfiinislrative Conference, 1982). 



64 Manual for Administrative Law Judges 



Commission, which used panels of witnesses for technical cases involving rates 
and licensing,-'* and the Nuclear Regulatory Commission.-'^ 

Although testimony by multiple witnesses can be used to advantage in 
many types of cases and circumstances, it would seem particularly adapted to 
cases involving cross-examination on highly technical evidence submitted 
before the hearing in written form where there is no substantial question of 
credibility of witnesses. Multiple witness testimony may also be used to 
advantage when it is necessary to have several witnesses testify as to a 
procedure in which they all participated or when the operation of a technical 
piece of equipment can best be explained by two or more experts. The 
feasibility and benefits of using this procedure will frequently depend on the 
ingenuity and resourcefulness of the judge and counsel. 

The mechanics of eliciting such testimony are simple. Usually, two or 
more witnesses would be seated where they could be observed by the reporter, 
the judge, and counsel. Counsel directs questions to one or more specific 
witnesses or to the panel as preferred, or as previously arranged. Each counsel 
cross-examines in the agreed-upon order. The procedure can be changed 
according to circumstances so long as it deprives no party of substantive 
rights. 

Nevertheless, problems may arise with the use of multiple witness panels. 
Some of those problems can best be resolved at a prehearing conference or at a 
conference during the course of the hearing, where the judge and counsel can 
arrange for the specific questions to be considered and the procedures to be 
followed. For example, they may agree as to whether questions are to be 
directed to the panel as a whole or to individual witnesses. Furthermore, 
whether this procedure will be used or permitted may affect how testimony is 
to be prepared. The judge should also be alert to possible confusion if two or 
more witnesses start talking at the same time, if the witnesses start arguing, or 
if it is not clear what the question is or which witness is qualified to answer it. 



^'*P. Nejelski and K. Shuarl, supra note 213, at 3. In a telephone conversation with Morel! 
E. Mullins, revisor for the 1993 edition of this Manual, FERC Chief Administrative Judge Curtis 
Wagner reported that he still uses this technique. 

^"Telephone conversation, March 26, 1992, between Judge Ivan Smith, Nuclear Regulatory 
Commission, and Morell E. Mullins, principal revisor, 1993 edition of this Manual. Judge Smith 
indicated that he had used the multiple witness technique in the 3-Mile Island case. For some 
reported NRC cases that refer to witness panels, see In the Matter of Public Service Company of 
New Hampshire, et al. (Seabrook Station, Units 1 and 2), 30 NRC 331, 1989 NRC Lexis 69 
(Docket Nos. 50-443-OL; 50-444-OL (Offsite Emergency Planning Issues, 1989); In the Matter 
of Florida Power and Light Co. (Turkey Point Plant, Units 3 & 4), 27 NRC 387, 1988 NRC 
Lexis 29 (Docket Nos. 50-250-OLA-2, 50-25 l-OLA-2, ASLBP No. 84-504-07-LA (Spent Fuel 
Pool Expansion), LBP-88-9A (1988)). 



Administrative Conference of the U.S. 65 



Another problem is that indexing the transcript by witness or subject may 
become more difficult. 

Obviously, multiple witness testimony may not be feasible or desirable in 
many situations. For example, it may have little, if any, use when credibility 
of witnesses is at issue, when witnesses are sequestered, or the factual 
questions are to be covered by only one witness. 

However, we are so accustomed to the seriatim testimony of one witness 
after another that we may have neglected too long a device which holds 
considerable potential for the complex case involving high tech factual 
disputes. The use of multiple witness testimony or panels, on its face, seems 
quite compatible with due process and could enhance the truth-finding function 
of the judge. At least some agencies by rule explicitly allow multiple witness 
testimony or panels.^'* 

g. Questions by the Judge 

The judge certainly may question a witness if there is good reason to do so. 
However, the judge should be very circumspect in exercising this power. 
Prudence should be the judge's watchword. For example, the judge ordinarily 
should not question a witness initially, before the parties have their 
opportunity to ask their own questions. However, on rare occasions, a judge 
might do so if it seems absolutely necessary for such purposes as: (1) 
preventing reversible error; (2) protecting the record against the inclusion of 
seriously misleading, obfuscating, or confusing testimony; or (3) avoiding 
serious waste of time by forestalling extensive, useless, or irrelevant 
examination by counsel who is incompetent, or worse. Within reason, and 
with due regard for the need to maintain both the fact and appearance of 
impartiality, the judge also may need to interrupt when the witness and counsel 
are at cross purposes, when the record may not reflect with clarity what the 
witness intends to convey, or when for some other reason assistance is needed 
to ensure orderly development of the subject matter. At the close of cross- 
examination or redirect, the judge may question the witness to clarify any 
confusing or ambiguous testimony or to develop additional facts. When the 
testimony of the parties' experts is inconclusive, or when no expert witnesses 
are presented, the judge sometimes may find it necessary to call an expert as 



^'*10 CFR §110.107(0 (1991) (NRC. Export & Impon of nuclear equipment and material: 
"Participants and witnesses will be questioned orally or in writing and only by the presiding 
officer. Questions may be addressed to individuals or to panels of participants or witnesses."); 40 
CFR §124.85 (1991) (EPA, evidentiary hearings for EPA-issued NPDES permits and EPA- 
terminated RCRA permits: authorizing hearing officer to "[pjrovide for the testimony of opposing 
witnesses to be heard simultaneously or for such witnesses to meet outside the hearing to resolve 
or isolate issues or conflicts."). 



66 Manual for Administrative Law Judges 



the tribunal's own witness. 2" Indeed, the judge is not necessarily limited to 
calling expert witnesses. Where necessary, and subject to any agency or 
statutory constraints, the judge usually can call witnesses or adduce evidence 
on any crucial issue. ^ 

h. Closing the Presentation 

When written evidence has been exchanged before the hearing, all of a 
party's witnesses, including rebuttal witnesses, should normally be called and 
examined before the witnesses for the next party are called. When testimony is 
completed, a witness should be excused subject to recall at the judge's 
discretion, unless the parties and the judge agree that it is unnecessary. 

5. Rules of Evidence 

Few legal concepts have become more deeply entrenched than the postulate 
that the strict common law rules of evidence do not apply, by their own force, 
to administrative proceedings. The reasons for this are fairly plain. To the 
extent that traditional common law rules of evidence were developed to 
insulate jurors from certain kinds of information, they are not very relevant to 
the administrative proceeding, where there is no jury. Even before the APA, 
the inapplicability of the strict rules of evidence was well-established. For 
instance. Judge Learned Hand, in an opinion regarding the admission of 
hearsay in an NLRB proceeding, had approved a less rigorous standard, 
referring to "the kind of evidence on which responsible people are accustomed 
to rely in serious affairs."--' 

However, this does not necessarily mean that the rules of evidence 
prevailing in the courts can never be applied in agency proceedings. As usual, 
much depends on the organic statute governing the agency, and the agency's 
own rules. Statutorily, Congress may require an agency to apply nearly any set 
of evidentiary rules. The statutory provisions governing unfair labor practice 
hearings before the NLRB, for instance, require that those proceedings, "so far 
as practicable, be conducted in accordance with the rules of evidence 
applicable in the district courts of the United States under the rules of civil 



*Form 1 1 in Appendix I is a sample request for an expert to serve as a judge's witness. See 
also Federal Administrative Judiciary, supra note 4, at 82-83. 

"^See. e.g.. 29 CFR §2200.67(j) (1991) (Occupational Safety and Health Review 
Commission: authorizing ALJ to "[clall and examine witnesses and to introduce into the record 
documentary or other evidence"). 

^'NLRB v. Remington Rand, Inc., 94 F.2d 862, 873 (2d Cir. 1938), cen. den., 304 U.S. 
576 (1938). 



Administrative Conference of the U.S. 67 



procedure for the district courts of the United States."-- The variations are 
numerous. For example, one agency provides that the Federal Rules of 
Evidence (FRE) will be employed as general guidelines, but that all relevant 
and material evidence shall be received.^ Another provides that the FRE shall 
apply unless provided otherwise by statute, and, in addition, that the presiding 
officer may relax the rules if the ends of justice require it.-^" 

Still, the APA provides something of a guide, or statutory norm: any oral 
or documentary evidence may be received, but the agency as a matter of policy 
must provide for the exclusion of irrelevant, immaterial, or unduly repetitious 
evidence. ^^ Many agencies include provisions similar to the APA in their 
Rules of Practice."* However, some follow a different drummer and do apply 
the Federal Rules of Evidence.-' 

At any rate, the Federal Rules of Evidence are not controlling in 
administrative proceedings unless made so by statute or agency rule.^ It is 
worthwhile, however, for the judge to be familiar with these rules. They can 
furnish guidance and insights that can help resolve evidentiary problems. 

While technical rules of evidence are less important in administrative 
proceedings than injury trials, sound judgment concerning the probative value 
of proffered evidence is crucial. Relaxed rules of evidence may lull counsel 
into sloppiness, or deliberate tactics aimed at clouding the record with chaff. 



^9 U.S.C. §160(b) (1988). 

^9 CFR §209.15 (1991) (Department of TransporUtion, Federal Railroad Administration, 
Railroad Safety Enforcement Proceedings). For an NRC case, see Duke Power Co., 15 NRC 
453, 475 (1982) (FRE not directly applicable, but Commission looks to them for guidance). 

^*\6 CFR §1025.43 (1991) (Consumer Product Safety Commission, Rules of Practice for 
Administrative Law Judges). 

^5 U.S.C. §556(d) (1988). 

^See, e.g.. 10 CFR §2.743 (1991) 13 CFR §134. 28(b) (1992) (SBA); 16 CFR §3.43(b) 
(1991) (FTC); 18 CFR §385.509 (1992) (FERC); 43 CFR §4.435 (1991) (Department of the 
Interior); 45 CFR §81.78 (1991) (Department of Health & Human Services, Part 80 
proceedings). 

^''See 29 CFR §2200.71 (1991) (Occupational Safely and Health Review Commission). The 
Consumer Product Safety Commission also makes the Federal Rules applicable, but with 
loopholes. "Unless otherwise provided by statute or these rules, the Federal Rules of Evidence 
shall apply to all proceedings held pursuant to these Rules. However, the Federal Rules of 
Evidence may be relaxed by the Presiding Officer if the ends of justice will better served by so 
doing." 16 CFR §1025. 43(a) (1991) (rules of practice for adjudicative proceedings). 

^^For a significant article on the Federal Rules of Evidence and administrative law, see 
Pierce, Use of the Federal Rules of Evidence in Federal Agency Adjudications, 39 Admin. L. 
Rev. 1 (1987). For a relevant Administrative Conference Recommendation, see ACUS 
Recommendation 86-2, "Use of the Federal Rules of Evidence in Agency Adjudications," 1 CFR 
§305.86-2 (1992). 



68 Manual for Administrative Law Judges 



The judge must remain alert, and should strike, upon objection or upon motion 
of the bench, evidence so confusing, misleading, prejudicial, time wasting, 
repetitious, or cumulative that its pernicious influence outweighs its probative 
value. Marginally relevant evidence is not merely useless; it is positively 
harmful because it inflates the record which the parties, the judge, and the 
agency must examine. -^ 

a. Hearsay 

Any rigid rule about hearsay is unsuited to the varied inquiries conducted 
by administrative agencies. Unless statute or agency rule dictates otherwise, 
hearsay should be admitted if it appears reliable and is not otherwise improper. 
It should be admitted if the nature of the information and the state of the 
particular record persuade the judge that it is useful. ^^ 

b. Best Evidence 

Counsel sometimes offer a copy of a document without a proffer of the 
original. The accuracy and authenticity of the document may be assumed 
unless questioned. The agency rules-^' or the procedural ground rules adopted 
by the judge-^- may provide that the authenticity of proffered documents shall 
be deemed admitted unless written objections are filed within a specified time. 
The prehearing proceedings will frequently produce stipulations concerning the 
principal documents at issue and the facts they contain. 

6. Offers of Proof 

When documents offered in evidence are rejected they may, if requested by 
counsel, serve as offers of proof of the facts stated. When an objection to the 
receipt of oral testimony is sustained, counsel should be permitted, as an offer 
of proof, to state orally the substance of the evidence to be offered; or if the 
offer is lengthy, the judge may require a written submission.-^' 



"^See Union Slockyard Co. v. United Stales, 308 U.S. 213, 223-24 (1939); United Stales v. 
Bowe, 360 F.2d 1, 7 (2d Cir. 1966), cen. denied. 38.5 U.S. 961 (1966); Fed. R. Evid. 401-403; 
and Gardner, Shiinking the Big Case, 16 Admin. L. Rev. 5 (1963). 

"^See Richardson v. Perales, 402 U.S. 389 (1971). 

'^^See, e.g..^\(, CFR §3. 32(b) (1992) (FTC); 28 CFR §68. 19(b) (1991) (Department of 
Justice); 47 CFR §1.246 (1991) (FCC). 

^^See text at note 98, supra, and Appendix 1, Form 3, 14. 

^^For some examples of agency rules dealing with offers of proof, see 7 CFR §1.141 (1991) 
(Department of Agriculture); 13 CFR §134.28 (1991) (Small Business Administration); 14 CFR 
§13.225 (1991) (FAA). 



Administrative Conference of the U.S. 69 



Counsel may argue that permitting a rejected exhibit to accompany the 
record as an offer of proof will not save any time unless cross-examination is 
permitted. Nevertheless, cross-examination on an offer of proof should not be 
allowed— absent agency rules or other overriding mandates—because it would 
defeat the purpose of the exclusion. 

7. Constitutional Privileges: Self-Incriminating Testimony, 
Search and Seizure, and Suppression of Evidence 

Privileges available in litigation generally, whether derived from the 
Constitution or case law or practice, are applicable to testimony in 
administrative proceedings. However, there are at least two important 
refinements that should be noted in this regard. First, the privilege against 
self-incrimination is personal and testimonial in nature, so ordinarily it does 
not apply to corporations, ^"^ other entities,^* or business records.-^* Second, 
failure to assert this protection constitutes a waiver. ^^ 

In addition, there are procedures under which a witness can be granted 
immunity and required to testify. Once a witness has claimed the privilege, 
the judge should refer any request to compel the witness to testify to the 
agency for determination pursuant to the relevant statute. --^^ 

The agency may, with the approval of the Attorney General, issue an order 
requiring an individual to provide testimony or other information that is 
withheld on the basis of the privilege against self-incrimination, but only if the 
agency concludes that the testimony or other information from the individual 
may be necessary to the public interest and. that the individual has refused or is 
likely to refuse to testify or provide such information. If such an order is 
issued, the individual is immunized from any criminal prosecution based on his 
testimony or information. '^' 

Application of the Fourth Amendment's provisions regarding search and 
seizure can be quite complex, even abstruse. Some issues, such as the 
agency's basic authority to inspect commercial premises without a warrant, are 



2^U.S. V. White, 322 U.S. 694, 699 (1944). 

^^See Bellis v. U.S., 417 U.S. 85 (1974); U.S. v. Greenleaf, 546 F.2d 123 (5lh Cir. 1977). 

^Shapiro v. U.S., 335 U.S. 1 (1948). Bui see Marchetti v. U.S., 390 U.S. 39 (1968). 

^^United Slates v. Kordel, 397 U.S. 1, 10 (1970). 

^See 18 U.S. C. §§6001-6005 (1988). 

^'l8 U.S.C. §§6002, 6004 (1988). For some agency rules regarding this process, see 14 
CFR §13.119 (1991) (FAA); 16 CFR §3.39 (1991) (FTC); 16 CFR §1025.39 (1991) (Consumer 
Product Safety Commission). 



70 Manual for Administrative Law Judges 



likely to be heard in the judicial branch.^ The administrative law judge 
perhaps is most likely to encounter Fourth Amendment issues in the context of 
efforts to exclude or suppress evidence allegedly obtained illegally, in 
violation of this, or other, constitutional rights. Thus far, the key Supreme 
Court decision is INS v. Lopez- Mendoza-'*^ which candidly resorts to balancing 
the likely social benefits of excluding unlawfully seized evidence against the 
likely costs of excluding it. 

8. Argument on Motions and Objections 

The judge may permit oral argument in support of or in opposition to 
motions and objections. If desired, and not unduly delaying, the judge may 
request written memoranda upon disputed points. Whether or not oral 
argument is requested, exceptions to unfavorable rulings should be deemed 
automatic; there is no need for a constant chorus of "Exception" from counsel 
to preserve counsel's exceptions. 

9. Confidential Information 



a. Methods of Handling Confidential Material 

When it is desirable to prevent competitors from obtaining information 
about specific trade relationships, it is sometimes possible to substitute 
symbols for names and to receive the information at the public hearing. When 
similar statements or reports from several individuals are involved, counsel 
may agree to identify, and cross-examine on, a number of representative 
reports and to receive the others without cross-examination and with no public 
identification other than symbols.-''- Alternatively, the parties may agree to 
submit data on a confidential basis to a neutral expert for preparation of 
summaries or averages. It is sometimes desirable to hold separate /// camera 
sessions for different parties, with competitors excluded from each session. 
This may require the consent of the parties involved. 

When it is desirable to have an advance written exchange of confidential 
material, the judge should develop appropriate safeguards to ensure 
confidentiality. The judge may, for example, obtain the commitment of the 
parties receiving the material to limit its distribution to specific persons; or ask 



^See, e.g.. New York v. Burger, 482 U.S. 691 (1987); Dow Chemical Co. v. U.S., 476 
U.S. 227 (1986); Donovan v. Dewey, 452 U.S. 594 (1981); Marshall v. Barlow's, Inc., 436 
U.S. 307 (1978). 

2^'468 U.S. 1032 (1984). 

^^Cf. North Atlantic Tourist Commission, 16 CAB 225, 227, 228, 234, 235 (1952). 



Administrative Conference of the U.S. 71 



unaffected parties to waive the receipt of certain material. All copies of such 
material should bear a prominent legend stating the limitations upon its 
distribution pursuant to the order of the judge. 

In some agencies, such as the FCC or FTC, confidential information, 
particularly material claimed to be proprietary information or trade secrets, 
may be handled by procedures contained in a protective order issued by the 
judge.^^ Such an order often is issued during prehearing discovery, as a result 
of a party's refusal to release material to an adversary party, an intervenor, or 
the agency staff without provision for confidential treatment. The request for 
the order is usually grounded on the claim that unrestricted release of the 
material may result in its misuse, such as unfairly benefiting competitors. To 
guard against misuse of the information, the order should provide the terms 
and conditions for the release of the material. It should also contain an 
agreement to be signed by users of the material, and may include procedures 
for handling the material if offered in evidence, including, for example, prior 
notification to the party submitting the material of the intention to offer it as 
evidence, and provisions for sealing the pertinent portions of the record, 
briefs, and decisions. '*• In some situations the judge may find it easier to 
allow the parties to draft a proposed order for the judge's consideration. 

The judge must recognize that the use of protective order procedures could 
be inimical to the concept of a public hearing. Consequently, extreme care 
must be exercised in the issuance and application of the order to ensure that the 
integrity of the record is preserved and the rights of the parties and the public 
are given due consideration. 

At the hearing, if material covered by the prehearing order is offered in 
evidence, the judge must decide whether the material should be admitted, 
rejected, or admitted with special protection.^* To do this, the judge should 
examine the material, hear arguments, and make rulings in camera. If the 
judge rules that the material is not covered by the order and a request to appeal 
the ruling is made, the request should usually be granted, if interlocutory 
appeal on this issue is permitted by agency rules. Further action with respect to 
the material then would be deferred until the appeal is decided. 



^^See. e.g., Exxon Corp. v. Federal Trade Commission, 665 F.2d 1274 (D.C. Cir. 1981). 
Some examples of agency rules pertaining lo protective orders include: 10 CFR §205.66 (1991) 
(Department of Energy); 15 CFR §25.24 (1991) (Department of Commerce, Program Civil Fraud 
Remedies); 16 CFR §3.31(c) (1991) (FTC); 16 CFR §1025. 31(d) (1991) (Consumer Product 
Safety Commission); 18 CFR §385.410 (1991) (FERC); 29 CFR §18.15, 18.46 (1991) 
(Department of Labor). 

^^'Forms 19-a to -d in Appendix I are sample protective orders. 

^^See 16 CFR §3.45 (1992) (FTC); 49 CFR §511.45 (1991) (DOT, National Highway 
Traffic Safety Administration). 



72 Manual for Administrative Law Judges 



b. In Camera or Closed Sessions^ 

Hopefully, any issues involving confidential, privileged, or similar matter 
will have been raised and resolved during the prehearing stage of a case. 
However, much of what is discussed here would apply equally to handling the 
problems of confidential material during discovery and other prehearing 
proceedings. 

By specific rule or under the general authority to regulate the course and 
conduct of the hearing, a judge not only may consider documents in camera, 
but also may hold in camera (i.e., closed) sessions to receive confidential 
material. Closed sessions or in camera proceedings should be discouraged 
because they often create serious practical problems in the conduct of the 
hearing, in the preparation of briefs, and upon administrative and judicial 
review. However, they may prove unavoidable from time to time, especially 
in agencies that regularly deal with sensitive governmental, technical, or 
commercial information. 

An in camera session is a part of the formal proceeding, but the testimony, 
documents, and exhibits received are not included in the public record.^' This 
permits confidential receipt of evidence that frequently consists of "matters 
required by Executive Order to be kept secret in the interest of the national 
defense or foreign policy" or "trade secrets and commercial or financial 
information. "-^ 



''^he 1982 edition of this Manual used the term "executive session" to refer lo those parts 
of an administrative hearing closed by the judge, in order lo consider confidential material and 
similar matters. However, trolling through the CFR and Lexis, the present revisor noticed a 
strong tendency for the term "executive session" lo be used mainly in the context of nonpublic 
proceedings of the agency or board itself. See, e.g., 4 CFR §305.6 (1991) (Cost Accounting 
Standards Board, GAO); 48 CFR §9901.311 (1991) (Cost Accounting Standards Board, OMB). 
A Lexis search for "executive session" disclosed the use of that term in connection with AUs or 
other hearing officers mainly in a few EPA regulations, such as 40 CFR §85.1807(n)(3) (1991) 
(referring, apparently indiscriminately, to both in camera testimony and executive session); 40 
CFR §86.614-84 (1991). The more commonly used term in the CFR seems lo be "in camera." 
See, e.g., 15 CFR §788.1 1(d) (1991) (Department of Commerce, Bureau of Export 
Administration: "In camera proceedings"); 13 CFR §121. 1717(b) (1991) (SBA: "In camera 
treatment of documents and testimony"); 16 CFR §3. 45(b) (1991) (FTC); 16 CFR §1025.45 
(1991) (Consumer Product Safety Commission); 40 CFR §86.614-84(n)(2)(ii) (1991) (EPA: 
referring to "in camera proceeding"). Accordingly, for whatever difference it may make, the 
term "executive session" will not be used here. 

'^''See, e.g., 13 CFR §121. 1717(d) (1991) (SBA); 16 CFR §3.45(b),(c) (1991) (FTC); 19 
CFR §210.44 (1991) Gntemalional Trade Commission). 

^'^5 U.S.C. §§552(b)(l), (4) (1988). This section is usually referred to as the Freedom of 
Information Act (FOIA). An in camera session is not required merely because evidence arguably 
within FOIA may be involved. However, agency hearing rules regarding material or evidence 



Administrative Conference of the U.S. 73 



Subject to agency rules, an in camera session may be held when a witness, 
an attorney representing a party, or any other person objects to the public 
disclosure of any privileged or confidential information. Before granting an in 
camera session the judge should be sure that the evidence in question qualifies 
for protection pursuant to agency rule or statute. If the information to be 
received is classified, the judge should determine whether he or she and all of 
the participants have the required security clearance. 

An /// camera or closed session is justifiable only when the law or orderly 
development of the record and the needs of the parties require it. When this 
occurs during the hearing, the judge should announce that the public session is 
in recess, that an in camera or closed session will be held, and, if possible, 
that the public session will resume at a stated time. If the session is to be 
conducted at the end of the hearing, the judge should announce that the public 
session is closed and that an in camera or closed session will follow. 

The in camera session should be attended only by the judge, the official 
stenographer, and such representatives of parties or interested persons as the 
judge designates, or the agency rules may require. The names of all persons 
present must be recorded by the official stenographer. After the hearing room 
is cleared of all others, the session may be opened as follows: 

This is an in camera [or closed] session. I direct the reporter 
to keep the transcript of this session confidential until 
released by the agency; to record the names of the persons 
present and the fact that they were sworn to secrecy; to make 
only one transcription of the proceedings and immediately 
thereafter to place the typed record, together with the 
stenographic notes and any papers or exhibits received in 
evidence, in an envelope; to seal the envelope and deliver it 
to me (or such other agency official as is appropriate). 

Before proceeding the judge should administer an oath or affirmation such 
as the following to all persons present, including himself: 

Do you solemnly swear (or affirm) that you will hold secret 
and will not divulge in any manner whatsoever to any person 
any of the evidence or information which is adduced at this 
session until such time as the agency may by order indicate 
that the public interest does not require the continued 
withholding of such evidence or information, (so help you 
God)? 



taken in camera sometimes overlap, or are coordinated with, FOIA-type disclosure rules. See, 
e.g., 14 CFR §302.39(a), (e)(199l) (DOT, FAA), and 49 CFR §7.57 (DOT). 



74 Manual for Administrative Law Judges 



When the reason for secrecy is the desire to withhold information for 
competitive purposes and not national defense, the parties may modify their 
agreement about confidentiality in any manner they choose. 

10. Supplemental Data 

During the hearing counsel may request or the judge may require 
supplemental information. The judge may direct its submission during or after 
the close of the hearing. If submitted during the hearing, unless stipulated, a 
sponsoring witness should be made available. If it is to be submitted after the 
close of the hearing, the judge should establish the date for submission, request 
a waiver of cross-examination, and set the date for filing objections. Even if 
waiver of cross-examination cannot be obtained in advance, it may be obtained 
after the parties have received the supplemental material. Otherwise it may be 
the basis for an objection. The judge should identify, by mark or otherwise, 
the information submitted and rule on all objections. 

If the basis of an objection is the need for cross-examination, it should be 
accompanied by a statement of the specific purposes of such questioning. If it 
does not appear that cross-examination is "required for a full and true 
disclosure of the facts, "-''^ or if the material is in any event subject to official 
notice, the objection should be overruled. Relevant statutory provisions and 
agency rules governing official notice must, of course, be followed. If the 
supplemental information is necessary and cross-examination is required, the 
judge should reconvene the hearing. 

Sometimes the parties may stipulate that certain reports or other documents 
(such as production, income, or cost data), whether or not regularly scheduled, 
will be received in evidence when released, up to an agreed-upon time no later 
than final agency decision. 

11. Mechanical Handling of Exhibits 

As each exhibit is introduced, the reporter should be supplied with the 
number of copies specified in the rules (usually two). The judge should be 
supplied with one copy. All copies submitted must be legible. If corrections 
are required later, all copies should be manually corrected by the party 
submitting them or revised copies should be submitted. The reporter should 
transmit the exhibits to the agency's docket section with the pertinent parts of 
the transcript. Similarly, when material is submitted directly to the judge, the 
judge should ensure that it is also transmitted to the docket section for 
inclusion in the agency record. 



^^5 U.S.C. §556(d) (1988). 



Administrative Conference of the U.S. 75 



When sufficient copies of an exhibit are not available at the hearing, the 
original may be consigned to counsel with the understanding that it will be 
reproduced and returned to the judge, with copies to all parties. This action 
should be reflected on the record. 



C. Concluding the Hearing 



1. Oral Argument 

Subject to agency rules, the judge either by direction or on request may 
permit or require oral argument on the merits of the entire case, or on specific 
issues, at the close of the hearing or at such other time as may be directed. 

The Administrative Procedure Act requires that parties be afforded a 
reasonable opportunity to submit proposed findings and conclusions to the 
judge. ^^ Although the APA does not require that they be in writing, this is 
customary, and may be required by agency rules. The judge who wishes to 
substitute oral argument for briefs should tell the parties at the earliest 
opportunity, preferably before convening the hearing. If that is not feasible, 
the judge may permit a short recess at the close of the hearing to give the 
parties time to prepare oral argument. The latter procedure may be 
inconvenient and may offer no advantages over written briefs if the argument 
is not made the day the hearing ends. 

2. Conferences 

At the close of the hearing, after the parties have presented their cases and 
heard the testimony of all parties, they may find it advantageous to settle some 
or all of the substantive issues, or to enter into procedural stipulations. If 
requested, or if the judge believes that it might eliminate, expedite, or simplify 
some procedural steps, a conference to consider such matters may be suggested 
or ordered. 

3. Briefs 

Subject to agency rules, the judge should establish dates for submission of 
briefs. The judge may also authorize reply briefs. Briefs should conform in 
length and form to agency rule and to the judge's instructions. They should 
contain precise citations to the record and to the authorities relied upon. 
Counsel are sometimes careless about citation form, referring to cases without 



^5 U.S.C. §557(c) (1988). 



76 Manual for Administrative Law Judges 



adequate identification. The judge may avoid this by requiring reasonable 
adherence to the Uniform System of Citation^^ or any other standard citation 
system. The judge should require a table of authorities and, if the brief 
exceeds a stated number of pages, a table of contents or an index. The judge 
may require research on legal or technical issues and may require the parties to 
brief specific issues.^- 

4. Notice of Subsequent Procedural Steps 

The judge should insure that all parties and interested persons who 
appeared at the hearing are notified of the dates fixed for submission of briefs 
and for other procedural steps. 

5. Closing the Record 

After receipt of all supplemental data the judge may announce by order the 
closing of the record. For extraordinary reasons, such as newly discovered 
evidence, and subject to agency rules, the record may be reopened for 
additional hearing or to stipulate additional material. 

6. Correcting the Transcript 

If the agency rules prescribe no procedure for correcting prejudicial errors 
in the transcript, the judge should set them. These should specify the period of 
time after receipt of the transcript during which changes may be requested. 
Requests in writing should be made to the judge, with copies to all parties, and 
should set forth the specific changes desired. If no objections are received 
within a specified time, and if the judge does not find the proposed corrections 
inaccurate, the transcript should be corrected accordingly. If any party or the 
judge does object to the proposed correction, it should be submitted to the 
official reporter for comparison with the stenographic record. After receipt of 
the reporter's reply the judge should rule on the request. -^^ 

The judge should propose corrections if substantial errors are discovered. 
All parties should be notified of the changes proposed and advised that unless 
objections are received within a specified time the record will be corrected 
accordingly. 



^'A Uniform System of Citation (15lh ed. 1991). 

■^^Form 12 in Appendix I is a sample request for the briefing of certain issues. 
^^Form 13 in Appendix I is a sample order correcting the transcript when the motion to 
correct is opposed. 



Administrative Conference of the U.S. 77 



D. Retention of Case Files 

The judge's personal case files should not be destroyed after issuing the 
decision. Copies of official documents should be retained until the case is 
finally resolved, either by action of the agency or the courts. Either may 
remand the case to the judge for further hearing, reconsideration, or both. It 
will be inconvenient if the judge's own record has been destroyed, and may 
make the task of reconstructing the record extremely difficult if any part of the 
agency record has been misplaced, damaged, or lost. 

VI. Techniques of Presiding 

As to those aspects of technique touching on matters purely of style, this or 
any other general Manual will be of limited value. There probably is no single 
"right" personal style, when it comes to presiding over a case. Every judge 
has, and develops, an individual style of presiding. 

Judges—like managers, mediators, and other professionals whose job is to 
exert control over a situation—can differ in basic personal style and still be 
effective. A judge can be extroverted or introverted, aggressive or diffident, 
pragmatic or idealistic, empathetic or detached, formal or informal, gregarious 
or reserved. Every judge has a personal temperament shaped by years of 
experience, and that temperament does not change instantly upon appointment 
as an administrative law judge. The most important personal quality relative 
to presiding is probably the capacity for insight or introspection into one's own 
basic temperament. This is a necessary precondition to learning how to control 
any personal quirks or characteristics— such as a quick temper at one extreme, 
or timidity at the other— which might detract from judicial professionalism. 

As to other aspects of judging, the proper techniques and methods of 
presiding depend upon the nature of the case, the number and character of the 
parties, the issues, the personality of the judge and counsel, and many other 
variables. Methods and procedures helpful to one judge may be detrimental to 
another; techniques fair and reasonable in one situation may be arbitrary and 
inequitable in another. Nevertheless, over the years, administrative law judges 
have developed certain approaches, customs, and practices that help develop a 
fair and adequate record in minimal time. 



A. Preparation and Concentration 

The judge must know the case. It is forgivable for a judge to be less than 
brilliant and even imperfect. It is not forgivable for a judge to be unprepared. 



78 Manual for Administrative Law Judges 



Before opening the hearing the judge should study the pleadings, the 
evidence, the prehearing filings, and the trial briefs. The judge also should 
analyze any anticipated legal, policy, or procedural problems. The experience 
of fellow judges can be a source of general information and advice. 

At the opening of the hearing—and at other times during the proceedings—if 
the judge needs to make a lengthy statement, the statement should, whenever 
possible, be prepared in advance and read into the record. It is more likely to 
be accurate, and it will be easier to understand. 

On a par with preparation is concentration. It is easy to suffer lapses in 
this department. Fortunately for judges, a lapse in concentration may not be 
quite as fatal as it could be for a trial lawyer whose inattention results in 
failure to make timely objection or in a waiver of the client's rights. 
However, the judge still must concentrate. During the hearing the judge 
should follow the testimony closely, not only to prepare for writing a decision, 
but to keep the hearing on course. 

In a related vein, it is wise to skim the previous day's notes, exhibits, and 
transcript before convening the hearing each day. This procedure has dual 
benefits. The judge who is fully familiar with the case and the record will be 
better equipped to exclude unnecessary questions and testimony and keep the 
hearing moving; it will be easier to rule promptly. Furthermore, notes made 
concurrently with the transcript may be of incalculable value when searching 
the record while drafting the decision. 



B. Judicial Attitude, Demeanor, and Behavior 

The judge should be in control, but considerate of counsel, witnesses, and 
others in attendance. Each witness should be called by name and thanked 
when excused from the stand. Informal reprimands when necessary should 
ordinarily be delivered privately during recesses or otherwise off the record; 
they should be entirely avoided if possible. 

The judge should not argue with counsel. The judge should listen to 
counsel's point at reasonable length, make a ruling, and proceed. If counsel 
continues to argue about the ruling, the judge should tell him to proceed with 
the examination or use any other courteous admonition to close the discussion. 

Judicial authority and trial behavior terminate as soon as a recess or an 
adjournment is announced. If counsel have been recalcitrant, evasive, or even 
antagonistic, the judge should harbor no resentment upon leaving the bench. 
One who bears a grudge cannot preside effectively. 

The experience, training, and background of participants should always be 
considered. If an experienced or professional witness is verbose, evasive, or 
irrelevant, the judge should either stop the testimony or lead it back to relevant 



Administrative Conference of the U.S. 79 



territory. When there is any question of a witness' veracity or forthrightness, 
cross-examining counsel should be permitted maximum latitude. 

However, a witness may be comparatively inexperienced, unacquainted 
with judicial procedures, frightened, or nervous. The judge should tactfully 
put such witnesses at ease, protect them from improper questioning of counsel, 
interrupt when necessary to simplify or clarify questions, permit a certain 
amount of wandering and meandering testimony, and review with the witness 
any testimony that has become confused. 



C. Controlling the Hearing 

The judge must control the hearing. As soon as the subject under inquiry 
is exhausted or fully developed, the judge should stop counsel or the witness 
and direct him to go to other matters. If a question or an answer is irrelevant 
or improper, the judge should strike it without necessarily waiting for an 
objection. 

On the other hand, if counsel is usefully developing a significant matter, 
the judge should let him proceed regardless of tedium or ennui. Every veteran 
judge ruefully recalls searching the record for an important item, only to 
discover that at the hearing a question seeking that information had been 
prohibited. 

Prompt rulings are essential. If sure about the ruling, the judge should 
limit argument. If the proponent's argument is not persuasive, the judge should 
deny the motion or objection without hearing opposing counsel. In multiparty 
cases, the judge ordinarily should hear argument from only one counsel on 
each side and should rarely permit rebuttal. If the reason for a ruling is 
obvious the judge need not waste time explaining. If the issue is more 
doubtful, reasons should be stated. 

A judge should correct an unsound ruling. If, however, making the 
correction will cause great inconvenience, such as substantial repetition of 
testimony, the judge should consider whether the error was so prejudicial as to 
justify such a burden or whether it might be rendered harmless in some other 
fashion.^ Counsel will often cooperate in working out a satisfactory solution. 

Sometimes counsel will repeat the same line of questioning when inquiring 
into similar factual situations. The judge may shorten this type of examination 
by questioning the witness as follows: "If counsel asked you the same 
questions with reference to your testimony on B, C, and D as were asked with 
reference to A, would your answers be the same?" 



^*See 5 U.S.C. §706 (1988) (menlioning ihat, on judicial review, due account shall be taken 
of the rule of prejudicial error). 



80 Manual for Administrative Law Judges 



Occasionally one party or a group with the same interests will have several 
counsel in attendance. The judge normally should allow only one counsel to 
examine each witness and require the judge's permission before co-counsel 
may take over the examination. In appropriate circumstances, the judge may 
insist that only lead counsel state the position of the group. 

Although the judge should expedite the hearing and prevent unnecessary 
testimony, arbitrary time limits should be avoided: for example, allotting 
counsel 1 day to present the case or 30 minutes for cross-examination. It is 
seldom possible to determine in advance how much time will be needed, and 
an arbitrary cutoff can be seriously prejudicial. The object is to make the 
hearing as short as the subject requires— not to fit it into a predetermined 
timeframe. 

Although the record will presumably be cleaner and easier to understand if 
the planned order of presentation is strictly followed, circumstances such as the 
illness or unforeseen unavailability or serious inconvenience of a witness often 
interfere. Rather than adjourning the hearing until the witness is available, it 
is usually preferable to rearrange the schedule after informal discussions with 
counsel. Similarly, if essential material is offered after the time fixed for its 
presentation has expired, the schedule should be revised, if no one is 
prejudiced, to permit its receipt. If the parties need time to prepare cross- 
examination or rebuttal, the original order of presentation can be resumed until 
cross-examination or rebuttal is prepared. If this is not feasible a brief recess 
may be called. 



D. Some Common Problems 

It is the judge's duty to keep control of the courtroom. A proper tone 
should be set to discourage counsel who seek to manage the hearing for the 
judge. The judge must be alert to detect and restrain such counsel, whose 
tactics take many forms. They may stall on cross-examination until the noon 
or evening recess to get time to think of more questions. They may violently 
contest the judge's rulings, either by incessant argument or by repeated 
inconsequential changes in the form of a stricken question. They may inject 
themselves into matters of no interest to their clients. They may fail to have 
their witnesses present when they are scheduled to testify. If these tactics are 
successful, they may produce in opposing counsel not only animosity but 
emulation. The resulting record is unmanageable. 

If one or more of the parties is engaged or interested in a related 
administrative or judicial proceeding, counsel may attempt to develop evidence 
only peripherally relevant in order to use it in the other proceeding. The judge 



Administrative Conference of the U.S. 81 



must stop such attempts or end up with a record containing vast amounts of 
useless material. ^^ 

If tempers become short and an altercation threatens to disrupt the hearing, 
the judge must restore order. In some cases a recess may be useful. If counsel, 
a witness, or any person in the hearing room becomes unruly or offensive in 
remarks or maimer, the judge should assert control, express disapproval of the 
opprobrious conduct and warn against a repetition. 

The judge might also consider directing that the objectionable remarks be 
stricken physically from the record,^* but this power should rarely be used. 
The sensibilities of agencies are not easily offended. No matter how offensive, 
obscene, slanderous, or vile, the questionable remarks may be relevant to a 
later charge concerning the credibility or other actions of the person making 
the remarks. Generally, material should be stricken physically only with the 
consent of all parties and only where the material has no conceivable relevance 
to the merits, or to an adequate record of the case. 

A final resort is to exclude counsel from further participation in the case, to 
take prejudicial action against the client if authorized by statute or rule, or to 
recommend disciplinary action by the agency. 



E. Off-the-Record Discussions 

The reporter should be instructed to make a verbatim transcript of the 
proceeding unless directed by the judge to go off the record. The judge should 
seldom go off the record, however. True enough, off-the-record discussions 
sometimes can be helpful in considering mechanical details of the hearing, 
such as procedural dates or the order of presentation of witnesses. They may 
also be appropriate in handling emergency situations such as the sudden illness 
of a witness. 

They may also help to clear up substantive matters without cluttering the 
record. For example, counsel and the witness may so confuse each other that 
the record makes little or no sense. A short discussion off the record will clear 
up the problem and make the resulting record easier to understand. Similarly, 
counsel and witness may basically agree but their ideas of how to record the 



^^See, e.g., Toolco-Northeast Control Case, 36 CAB 280, 283, 285, 302, 307, 308 (1962). 

•^^Stricken material is included in the transcript with an annotation of the judge's ruling. 
Physically stricken material does not appear in the transcript. Cf. Larler & Sons v. Dinkier 
Hotels Co., Inc., 199 F.2d 854 (5th Cir. 1952); Ramsey v. United States, 448 F. Supp. 1264 
(N.D. III. 1978); Midwest Helicopter Airways, Inc., 2 NTSB 623. 1973 NTSB Lexis 3 (Order 
EA-532, Docket SE-1765, 1973), ajpd. Midwest Helicopter Airways. Inc. v. Butterfield, Civil 
No. 74-1 147 (7lh Cir., filed Jan. 6, 1975). 



82 Manual for Administrative Law Judges 



matter may differ. A few minutes off the record may result in a succinct and 
accurate statement that may save substantial time and make a cleaner record. 

This device must not, however, be overused. In fact, it should be used 
very sparingly. Requests for off-the-record discussions should be denied unless 
a verbatim transcript is clearly unnecessary or will serve no apparent purpose. 
Even when discussions are held off the record, decisions or agreements that 
result should be summarized for the record and confirmed by counsel to 
prevent later misunderstanding. 



F. Hearing Hours and Recesses 

In complex, multiparty cases, some administrative law judges customarily 
hold hearings for approximately 5 hours per day—for example, 10 a.m. to 
12:30 p.m. and 2 p.m. to 4:30 p.m. There is nothing magical about these 
hours, but such a schedule has several advantages. It allows time for the 
judge, counsel, and the parties to review, during the evening, the day's 
hearing and prepare for the next; without adequate preparation counsel's 
examination may be disorganized, rambling, and ineffective. Second, counsel, 
especially those from small offices, often need a few business hours each day 
to handle other matters. Finally, the concentration and constant attention 
required while a hearing is in session is mentally fatiguing. As a loose rule of 
thumb, counsel's examination is likely to become less articulate and concise 
after approximately 5 hours, and the risk of confusing, ambiguous, and 
mistaken questions and answers is increased. 

The judge should extend or shorten the regularly scheduled sessions as the 
situation requires. For example, an afternoon session may be extended to 
permit an out-of-town witness to fmish testifying and return home. If the 
hearing is drawing to a close on Friday afternoon, an evening session may be 
appropriate. Moreover, where it appears possible to complete the hearing in a 
single day, the judge, after consultation with counsel, may begin the hearing 
earlier and shorten the luncheon recess. 

The judge should insist, of course, that 5-minute recesses do not drag into 
15-minute ones, and that participants appear after recesses or intermissions at 
the appointed time. 



G. Audiovisual Coverage 

Historically, the courts and the American Bar Association have tended to 
disapprove of photographing and telecasting courtroom proceedings. There 
was a time when Canon 3A(7) of the American Bar Association's Code of 



Administrative Conference of the U.S. 83 



Judicial Conduct stated that such procedures should not be permitted.^' 
Similar blanket proscriptions were adopted by the bar and courts of many 
states. However, the United States Supreme Court held in a landmark criminal 
case that: 

An absolute constitutional ban on broadcast coverage of trials 
cannot be justified simply because there is a danger that, in 
some cases, prejudiced broadcast accounts of pretrial and 
trial events may impair the ability of jurors to decide the 
issue of guilt or innocence uninfluenced by extraneous 
matter. The risk of juror prejudice in some cases does not 
justify an absolute ban on news coverage of trials by the 
printed media; so also the risk of such prejudice does not 
warrant an absolute constitutional ban on all broadcast 
coverage.-^* 

In 1972 the Administrative Conference of the United States adopted 
Recommendation 72-1, which encouraged audiovisual coverage of certain 
proceedings, with safeguards to prevent disruption, and subject to the right of 
any witness to exclude coverage of the witness' testimony.^' 

At the time this recommendation was adopted, broadcasting of agency 
proceedings was very limited. The Atomic Energy Conmiission and the Social 
Security Administration uniformly denied such coverage, and other agencies, 
although some more equivocally than others, usually discouraged it. The 
Federal Communications Commission authorized television coverage at the 
discretion of its judges. Most agencies at that time however, discouraged such 
coverage.^*** 

The Administrative Conference of the United States reviewed agency action 
upon its recommendation in 1977.-*' This review disclosed that only the 
Department of Labor, ^*- the Federal Communications Commission, and the 
Consumer Product Safety Commission were in substantial conformity. 
Fourteen other agencies had partially complied.^' 



^'Merrill Ruhlen, Manual FOR AnMiNisTRATrvE Law Judges 66 (1982). 

2^*Chandlerv, Florida, 449 U.S. 560, 574-75 (1981). 

^'^Broadcast of Agency Proceedings, 1 CFR §305.72-1 (1992). See also R. Bennett, 
Broadcast Coverage of Administrative Proceedings, 2 ACUS 625, 67 Nw. L. Rev. 528 (1972). 

^^Merriit Ruhlen, Manual For Administrative Law Judges 66 (1982). 

^'W. at 67, citing Recommendation Implementation Summary, 8/29/77, 72-1. 

2*2/d., citing 29 CFR §§2.10-2.16 (1981) for Department of Labor regulations. 

^^Id., also stating at n. 129, "The Commodity Futures Trading Commission indicated that it 
had no formal policies on this subject. The Federal Power Commission (now the Federal Energy 
Regulatory Commission) indicated disapproval." 



84 Manual for Administrative Law Judges 



In the 1990s, opposition to live or videotaped media coverage of trials and 
hearings has decreased, but remains substantial in some quarters. However, 
support for such coverage has grown to the point where a channel on cable TV 
is devoted largely to telecasting trials.^ 

On the administrative front, the overall picture is likewise mixed. For 
example, the Social Security Administration takes the position that Social 
Security hearings involve private claims. Accordingly, the hearing is not 
public in the usual sense. Outside observers, and this presumably includes the 
media, may not be present unless all claimants to the hearing consent and the 
AU finds that the outsider's presence would not disrupt the hearing. ^*^ 
Among the agencies with regulations concerning, or mentioning, media 
coverage are such varied organizations as the National Oceanic and 
Atmospheric Administration of the Department of Commerce,-*^ the Education 
and Appeal Board of the Department of Education,-*^ the ICC,^ the 
Department of the Interior's Fish and Wildlife Service,-^ and the FDA.^''" 

The question for judges in many agencies therefore is no longer whether it 
is within their authority to permit audiovisual coverage of formal hearings. 
The question is one of following agency rules, and where agency rules give 
them discretion, the questions then may multiply. Should any live or 
videotaped coverage be allowed? If so, in what form? Can a fair hearing can 
be assured in the presence of such coverage, and, if so, what precautionary 
measures can and should be imposed? 

For dealing with such questions, the judge should consider a number of 
factors and policies. For one thing, the free press educates and informs 
citizens about public affairs, and as a by-product helps induce honesty and 
integrity in our government. Moreover, government officials and government 
employees are servants of the public. We sometimes forget that the "public" is 
a shorthand term for that inchoate conglomerate of all U.S. citizens—who are 
the true "owners" of all government property, including information generated 
and being generated by the "government." Nevertheless, although all 
information, with certain limited exceptions such as national security, should 
be revealed to the public, this does not necessarily imply the right to use any 



^^E.g., Goodman, The Wheels of Justice, Live on Cable, New York Times, Section C, p. 
17, col. 1 (July 3, 1991). 

^^Social Security Adminisiralion, Office of Hearings and Appeals, Hearings, Appeals, 
Litigation and Uw manual (HALLEX), 1-2-650 (1990) (hereinafter. HALLEX). 

^15 CFR §981.560(1991). 

2*^34 CFR §4.807(1991). 

2^49 CFR §1113.3 (1991). 

^50 CFR §18.76 (1991) (Marine Mammals, hearings on Section 103 Regulations). 

2™21 CFR §10.200, etseq. (1991). 



Administrative Conference of the U.S. 85 



particular method to obtain such information. To determine the extent to 
which audio-visual coverage should be permitted, it is worthwhile to consider 
the most frequent objections. 

1. Physical Interference 

The lights, cameras, microphones, and wires that frequently accompany 
broadcasting (particularly television), can physically interfere with the hearing. 
Unrestricted deployment of broadcast equipment, personnel, and glaring lights 
throughout the hearing room may be seriously disruptive.^" However, with 
modem broadcasting equipment, physical disruption is not now an inevitable 
consequence of telecasting. Television broadcasting can now take place with 
inconspicuous and distant cameras using nonirritating lights. Simple 
videotaping can be even less intrusive. 

Requests for coverage by several stations may also cause problems. 
However, if more than one station wants to cover a proceeding they can all be 
limited to one set of microphones and one set of cameras. Another possibility 
might be pool coverage of some sort. 

2. Interference with the Dignity of Proceedings 

The presence of cameras, microphones, lights, and wires is sometimes said 
to detract from the dignity of formal proceedings. This may be merely another 
way of describing the physical disruption problem. There may be some, 
however, who feel that even unobtrusive recording equipment is undignified as 
a matter of aesthetics. 

Any such concern probably is too insubstantial to justify exclusion. With 
reference to trial publicity the Supreme Court has said "where there was 'no 
threat or menace to the integrity of the trial'. . .we have constantly required 
that the press have a free hand, even though we sometimes deplored its 
sensationalism."^^ Similarly, unless there is a more tangible basis for 
exclusion than dignity, the interest in acquiring information directly must 
prevail. 

3. Psychological Distraction 

The presence of electronic media may present a risk of psychological 
distraction. The knowledge that electronic media are present may convey to 
the parties, witnesses, and attorneys the feeling that their actions are taking 
place on a stage, rather than in a hearing room. This may lead some to 



2"5ee, e.g., Estes v. Texas, 381 U.S. 532 (1965). 
^^Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). 



86 Manual for Administrative Law Judges 



withdraw in shyness and others to play up to that larger audience. In either 
event it will distort conduct. 

This concern is greatly exaggerated. Television has been used in dozens of 
federal administrative proceedings without undue consequences.^^ As its use 
becomes more common, the psychological effect will be minimized. 
Moreover, this is a problem that can be handled by the judge, who can ensure 
the preservation of decorum and fair play by instructing representatives of the 
news media and others as to permissible activities in the hearing room, by the 
equitable assignment of seats to news media representatives and others, and by 
such other action as may be necessary. Audio-visual coverage should be 
permitted only so long as it is conducted unobtrusively and does not interfere 
with the orderly conduct of the proceeding. 



H. Taking Notes 

The extent to which the judge should take notes depends on personal 
temperament and work habits. Some judges take no notes, feeling that it 
distracts from the immediate task of controlling the hearing. Others prepare a 
simple topical index. Still others take detailed notes of the testimony of each 
witness, which a secretary may later type, possibly with transcript references. 
Such notes should be considered the personal property of the judge. They 
should not be made available to counsel under any circumstances. 

Some judges make notations on the written exhibits and testimony that are 
later keyed to the transcript by a secretary or law clerk. This makes searching 
the record substantially easier when the judge is writing the decision. 

In a protracted hearing involving numerous exhibits and requests for 
supplemental data the judge should at least note the identification of each 
exhibit, in order to verify that it has been offered and received in evidence 
before the sponsoring witness is excused. The judge should note the details of 
any arrangement for submission of supplemental material. At the opening of 
the hearing each day the judge should consult the notes and inquire of counsel 
whether the material requested for that day is available. If anything is to be 
submitted after the close of the hearing, the judge should review notes on the 
final hearing day and remind counsel of the material to be submitted and the 
submission date. 



^^Merriti Ruhlen, Manual FOR Administrative Law Judges 68 (1982). 



Administrative Conference of the U.S. 87 



VII. Conduct 

An administrative law judge is subject to several different, but overlapping, 
standards of behavior. As a lawyer, the judge is subject to the ethical canons 
of the bar.^'" As a federal employee, the judge must comply with the laws and 
regulations generally applicable to employees of the federal government. ^'^ As 
the employee of a particular federal agency, the judge is responsible for 
following that agency's rules. Some agencies' rules in fact specifically address 
administrative law judges,^'* presiding officers,^" or the conduct of those 
involved in proceedings before the agency.^™ 

Interestingly enough, the administrative law judge is not automatically 
governed by professional codes applicable to the judiciary. The Model Code 
of Judicial Conduct itself states, "Applicability of this Code to administrative 
law judges should be determined by each adopting jurisdiction. . . .[E]ach 
adopting jurisdiction should consider the unique characteristics of particular 
administrative law judge positions in adopting and adapting the Code for 
administrative law judges."-^ Therefore the Model Code of Judicial Conduct 
(Judicial Code) is not directly applicable to a federal administrative law judge 
unless or until it is adopted by the judge's employing agency, or by the federal 
government as a whole. 

However, the Judicial Code is highly relevant to the administrative law 
judge. If nothing else, it provides a "model" in the generic sense forjudges to 
observe. It also provides, indirectly, a source of guidelines by which to assess 
the propriety of a judge's behavior.^*" Moreover, some federal agencies have, 
in their rules, incorporated by reference the judicial "canons" of ethics or 



^^*E.g., American Bar Association, Model Rules of Professional Conduct (1984). 

"^^See SI Fed. Reg. 35006 (Aug. 7, 1992), to be codified at 5 CFR Pari 2635. 

'^''^See, e.g., 14 CFR §300.1 (1991) (DOT Aviation Proceedings); 40 CFR §164.40 (1991) 
(EPA Pesticide Proceedings); 43 CFR §4.1122 (1991) (Department of the Interior Surface Coal 
Mine Hearings and Appeals). 

^'^E.g.. 50 CFR §18.76 (1991) (Department of the Interior, Marine Mammals Section 103 
Regulations). 

^^E.g.. 21 CFR §12.90 (FDA, Conduct at oral hearings or conferences). 
American Bar Association, Model Code of Judicial Conduct 34, n.3 (1990). 

^^'For a discussion of the Code of Judicial Conduct as a source of guidelines and analogies, 
see Lewis, Administrative Law Judges and the Code of Judicial Conduct: A Need for Regulated 
Ethics, 94 Dickinson L. Rev. 929, 949-50 (1990) (citing a Merit System Protection Board case, 
In re Chocallo, 2 M.S.P.B. 23, af'd 2 M.S.P.B. 20 (1980), and ABA Informal Opinions of the 
Committee on Ethics and Professional Responsibility). 



88 Manual for Administrative Law Judges 



code.^' Finally, the Judicial Code has provided the basis for a Model Code 
specifically developed for administrative law judges—the Model Code of 
Conduct for Federal Administrative Law Judges (ALJ Code).^^ 

As with the Judicial Code, the ALJ Code is not self-enforcing. To be 
directly controlling or applicable, it must be adopted by the appropriate 
governmental authority. However, it was endorsed by the Executive 
Committee of the National Conference of Administrative Law Judges in 1989, 
and this endorsement was intended to reflect "the considered judgment of the 
Conference on appropriate provisions" adapting the Model Code of Judicial 
Conduct for application to administrative law judges. ^^ 

The ALJ Code contains seven numbered canons, with explanations and 
commentary.^" Omitting the explanations and commentary, the canons 
themselves are: 

Canon 1 

An Administrative Law Judge Should Uphold the Integrity 
and Independence of the Administrative Judiciary. 

Canon 2 

An Administrative Law Judge Should Avoid Impropriety and 
the Appearance of Impropriety in All Activities. 

Canon 3 

An Administrative Law Judge Should Perform the Duties of 
the Office Impartially and Diligently. 



^'40 CFR §164.40 (1991) (EPA Pesticide Programs: ""shall conduct the proceeding in. 
.manner subject to the precepts of the Canons of Judicial Ethics of the American Bar 
Association); 43 CFR §4.1122 (1991) (Interior Surface Coal Hearings: "Administrative law 
judges shall adhere to the 'Code of Judicial Conduct.'). See also 14 CFR §300.1 (1991) (DOT, 
"are expected to conduct themselves with the same fidelity to appropriate standards of propriety 
that characterize a court and its staff); 43 CFR §4. 27(d) (1991) (Interior General Rules: "shall 
withdraw from a case if he deems himself disqualified under the recognized canons of judicial 
ethics"). 

^-ABA, Model Code of Judicial Conduct for Federal Administrative Law Judges Preface at 
p. 3 (1989); see also Yoder, Preface, Model Code of Judicial Conduct for Federal Administrative 
Law Judges, 10 (J. OFTHE Nat'l As.soc. OF Admin. L.Judges) 131 (1990). 

^^Yoder, supra note 281, at 132. 

^*" American Bar Association, supra note 281, at 6-24; Yoder, supra note 281 at 134-48. 



Administrative Conference of the U.S. 89 



Canon 4 

An Administrative Law Judge May Engage in Activities to 
Improve the Law, the Legal System, and the Administration 
of Justice. 



Canon 5 

An Administrative Law Judge Should Regulate His or Her 
Extra-Judicial Activities to Minimize the Risk of Conflict 
with Judicial Duties. 

Canon 6 

An Administrative Law Judge Should Limit Compensation 
Received for Quasi-Judicial and Extra-Judicial Activities. 

Canon 7 

An Administrative Law Judge Should Refrain from Political 
Activity Inappropriate to the Judicial Office.-*^ 

In some respects, the ALJ Code is only part of a larger set of 
considerations involving the conduct of administrative law judges. These 
considerations revolve around a tension between independence and 
accountability. On the one hand, it is crucial to preserve the judges' 
independence—insulating them from improper agency pressures with respect to 
the substance of their decisions. On the other hand, it is also crucial to ensure 
that the judges are accountable for improper conduct and unprofessional, 
inadequate performance. 

These tensions have helped stimulate a growing body of studies, articles, 
and proposals regarding the status and conduct of administrative law judges. ^^ 



Administrative Law Judges, of course, are subject to laws regulating the partisan political 
activities of federal employees, e.g., the Hatch Act 5 U.S.C. §§7321-7327 (1988). 

^^E.g., ABA, New ACUS Study on Administrative Law Judges, 17 ADMINISTRATIVE Law 
News 1 (Summer 1992); Cofer, The Question of Independence Continues: Administrative Law 
Judges Within the Social Security Administration, 69 JUDICATURE 228 (Dec. 1985); Holmes, ALJ 
Update: A Review of the Current Role, Status, and Demographics of the Corps of Administrative 
Law Judges, 38 (Fed. Bar News &. Journal) 202 (May, 1991); Levant, Pointing the Way to ALJ 
Independence, 24 JUDGES Journal 36 (Spring, 1985); Levinson. The Proposed Administrative 
Law Judge Corps: An Incomplete But Important Reform Effort, 19 New Eng. L. Rev. 733 (1984); 
Lewis, Administrative Law Judges and the Code of Judicial Conduct: A Need for Regulated 



90 Manual for Administrative Law Judges 



At the very least, the 1990s probably will be a period of reevaluation for 
administrative law judges. Changes, of a greater or lesser degree, are quite 
likely. Exactly what those changes will be and where they will lead remains 
an open question. In the meantime, however, there are several topics 
pertaining to professional conduct that should be discussed in this Manual. 



A. Disciplinary Actions Against ALJs 

Although not an ideal source of guidance, some notion of at least minimal 
standards of acceptable conduct can be garnered from examining the current 
law and case precedents pertaining to disciplinary action against federal 
administrative law judges. 

Statutorily, the employing agency can take disciplinary action against a 
judge "only for good cause established and determined by the Merit Systems 
Protection Board on the record after opportunity for hearing. . . ."^' One 
must look to the cases decided by the Merit Systems Protection Board 
(MSPB), and the courts, for a gloss on what constitutes "good cause." 

A study published in 1992 indicated that there had been about two dozen 
reported cases since 1946 involving discipline or removal of ALJs "for good 
cause" under 5 U.S.C. §7521.^^ Five of these cases apparently resulted in 
removal.^' (The reported cases, of course, do not reflect resignations or 
adjustments that may have been reached without formal proceedings.) 

Because the reported cases are few in number, their value is somewhat 
limited as a source of guidance. However, some consideration of them still 
may be instructive. The grounds for "good cause" reflected in these cases 



Elhics, 94 Dick. L. Rev. 929 (1990); Moss, Jttdges Under Fire: AU Independence At Issue, 77 
A. B.A.J. 56 (Nov. 1991); O'Keefe, Administrative Law Jttdges, Performance Evaluation, and 
Production Standards: Judicial Independence Versus Employee Accountability, 54 GEO. Wash. L. 
Rev. 591 (1986); Palmer, The Evolving Role of Administrative Law Judges, 19 New England L. 
Rev. 755 (1984); Zankel, A Unified Corps of Federal Administrative Law Jttdges Is Not Needed, 
6 W. NewEng. L. Rev. 723 (1984). 

5 U.S.C. §7521 (Supp. n 1990). Disciplinary sanctions can include removal, suspension, 
a reduction in grade, a reduction in pay, or furlough of 30 days or less. Id. In addition, action 
can be taken against an administrative law judge under 5 U.S.C. §7532 (Supp. 11 1990) 
(pertaining to national security and related matters), or by MSPB Special Counsel under 5 U.S.C. 
§§1215, 1216 (Supp. II 1990). 

^^Federal Administrative Judiciary, supra note 4, at 1016-19. This figure is consistent with 
an earlier article on disciplinary proceedings against federal ALJs. Timony, Disciplinary 
Proceedings Against Federal Administrative Law Judges, 6 W. New Eng. L. Rev. 807, at n. 1 
and 2 (1984). 

^Vd. 155-56, at n. 1231. 



Administrative Conference of the U.S. 91 



seem to fall, for the most part, roughly into four categories: (1) personal 
conduct that is unrelated (or remotely related) to employment or professional 
duties; (2) misconduct, other than insubordination, related to the individual's 
behavior as a federal employee or judge (or both); (3) insubordination, with or 
without other misconduct; and (4) professional incompetence, i.e., generally 
matters of productivity and the quality of the judge's adjudications. Some 
cases, of course, fall into more than one category. 

Personal Misconduct Unrelated to Employment. Although there seems to 
be only one, relatively early case that falls purely within the "personal 
conduct" category, this case is enough to serve as a warning that a judge's 
purely personal life could furnish "good cause" for disciplinary action. In this 
case, financial irresponsibility in the form of failure to make any effort toward 
paying admitted debts was upheld as sufficient ground for disciplinary action 
and removal.^* "Good cause" for disciplinary action and dismissal is not 
necessarily limited to matters directly related to the judge's "on-the-job" 
conduct and could be found in the conduct of the judge's personal life. 

Unfortunately, a single case does not provide much guidance regarding 
exactly how far an agency could reach into a judge's private life to support a 
"for good cause" sanction or dismissal. The fact that there has been only one 
reported case clearly on point after nearly 50 years suggests that a "good 
cause" proceeding would not lightly be brought on the basis of a judge's 
private life or personal lifestyle. However, the existence of even one 
precedent for disciplinary action based on purely personal conduct (or 
misconduct) remains troublesome. An agency certainly might attempt to argue 
that a judge occupies an especially sensitive position, and that therefore purely 
personal, off-duty misbehavior might compromise the judge's effectiveness as 
an adjudicator. As always, there is language to be found in the cases that 
could support this (or almost any other) position. For example, "Honesty, 
integrity, and other essential attributes of good moral character are foremost 
among the qualities that lawyers, and especially judges, ought to possess if 
public confidence in the legal profession and the judiciary is to be promoted 
and preserved."'" 

Misconduct (Other Than Insubordination). In the category of misconduct, 
other than insubordination, the reported cases cover a fairly wide range of 
matters related to the judges' duties or at-work behavior. Some of the 
improprieties involve a judge's adjudicative actions which violate established 
norms of judicial conduct, such as accepting favors or gifts from a party in 



2*^cEachem v. Macy, 233 F. Supp. 516 (W.D.S.C. 1964), affd, 341 F.2d 895 (4th Cir. 
1965). See 5 CFR §2635.809. 

^'//i re Spielman, 1 MSPB 51. 56 (1979). 



92 Manual for Administrative Law Judges 



proceedings before the judge. ^ In others, serious improprieties by a judge in 
the actual conduct or adjudications have furnished "cause" for disciplinary 
actions.^' Cases involving nonadjudicative actions include incidents of 
improper behavior toward fellow employees, such as sexual harassment, 2** and 
abusive, rude or assaultive conduct.^* In some cases, the disciplinary action is 
predicated, at least in part, on nonadjudicatory conduct that is work-related, 
but that does not involve fellow employees; for instance, serious or recurring 
unauthorized personal use of government property,-^ and falsifying 
documents. 

Insubordination. The category of insubordination likewise covers a fairly 
wide range of specific factual incidents, but these incidents of course concern 
the judges' conduct toward supervisors or superiors. The cases generally fall 
into one of two subcategories. First, there is insubordination in the form of 
deliberate disobedience of valid orders or directives—refusal to comply with 
instructions, procedures, or case assignments.^^ Second, there is 
insubordination in the form of rude or abusive behavior toward a supervisor or 



2*2Hasson v. Hampton, 34 Ad. L. Rep. 2d (P&F) 19 (D.D.C 1973), ajBTd mem., D.C. Cir. 
(April 20, 1976). 

^•'SSA V. Friedman, 41 MSPR 430 (1989) (canceling hearings without reason); In re 
Chacallo, 2 MSPR 20 (1980) (affirmed by unpublished opinions in D.D.C. and D.C. Cir.) 
(demonstrated bias and lack of judicial temperament, in addition to various acts of disobedience 
and insubordination). See also SSA v. Anyel, Docket No. CB75219009T1 (MSPB, January 16, 
1992) (ALJ slip opinion) (upholding charge based on SSA AU's treatment oi pro se claimants, 
remanded on other grounds, MSPB opinion and order, June 25, 1993. 

2*'SSA V. Davis, 19 MSPR 279 (1984), aj^Td, 758 F.2d 661 (C.A.F.C. 1984) (unpublished 
opinion) Oewd and lascivious remarks to employees); SSA v. Carter, 35 MSPR 485, 1987 MSPB 
Lexis 176 (1987) (sexual harassment). 

^^Department of Commerce v. Dolan, 39 MSPR 314 (1988) (kicking employee); In re 
Glover, 1 MSPR 660, 663 (1979) (grabbing memo, pushing employee, pressing cover of copying 
machine on employee's hand). 

^SSA v. Givens, 27 MSPR 360, 1985 MSPB Lexis 1130 (1985) (personal use of 
government car). 

^^E.g., SSA V. Boham, 38 MSPR 540 (1988) (refusing to hear cases involving overnight 
travel); SSA v. Brennan, 27 MSPR 242 (1985), affd sub. nom. Brennan v. DHHS, 787 F.2d 
1559 (C.A. F.C. 1986) (refusing to follow case proceeding procedures, including routing of mail 
and use of worksheets); SSA v. Manion, 19 MSPR 298 (1984) (refusing to schedule hearings); 
SSA V. Arterberry, 15 MSPR 320 (1983), affd in unpublished opinion, 732 F.2d 166 (C.A. F.C. 
1984); In re Chacallo, 2 MSPR 20 (1980) (among other things, refusing to return case files and 
conducting a hearing af^er the case had been removed from the judge's jurisdiction) affd by 
unpublished opinions in D.D.C. and D.C. Cir. 



Administrative Conference of the U.S. 93 



other superior. Cases in this subcategory, of course, may involve both 
disobedience and abusive behavior, as well as other misconduct.^ 

As to the first three categories, the reported cases are of limited direct 
value, in and of themselves, as guides for a judge's conduct. They are few in 
number and deal with fact-specific situations. However, they are worthwhile 
gloss on the subject of an administrative law judge's conduct. The cases 
suggest that the judge who observes simple courtesy toward subordinates and 
peers, who displays a veneer of respect for supervisors, and who generally 
treats others the way the judge would like to be treated will go a long way 
toward satisfying any reasonable standards of conduct. 

Professional Incompetence— Productiviry/Qualiry. There remains the 
troublesome issue of professional competence and its relation to "for good 
cause"--in particular, matters of productivity and quality of adjudication. The 
problems, of course, orbit around mainly the need to reconcile accountability 
with adjudicative independence. 

The cases themselves seem to recognize this problem, and consequently 
might be described as "squinting" both ways. For example, one leading study 
has described three significant SSA-AU "productivity" cases decided by the 
Merit Systems Protection Board (MSPB) in 1984 as "a pyrrhic victory" for the 
agency.-^ "The agency won the right to bring low-productivity-based charges 
against ALJs," but lost before the MSPB, which rejected the agency's 
statistical evidence.^'"' In the first of the cases, the agency had presented 
evidence that the judge's case dispositions were about half the national 
average, but the MSPB "opined that SSA cases were not fiingible and that 
SSA's comparative statistics did not take into sufficient account the differences 
among these types of cases. The same reasoning was later applied to [the] two 
other pending cases against SSA AUs with similar productivity records."*" 

In another line of cases that did not directly involve the MSPB, some AU 
challenges to certain agency-management initiatives regarding productivity and 
uniformity have resulted in similar examples of judicial squinting. One 
significant judicial opinion said, at one point, that an SSA "goal" of 338 



'^E.g.. SSA V. Burris, 38 MSPR 51 (1988), aj^Td, 878 F.2d 1445 (C.A.F.C. 1989) 
(unpublished opinion) (insubordination with travel vouchers, office disruptions, attempts to 
undermine supervisor's authority by countermanding his instructions, ridiculing him, and 
unreasonably refusing to deal directly with him); SSA v. Glover, 23 MSPR 57 (1984) (vulgarity 
toward supervisor, throwing files). 

^'^Federal Administrative Judiciary, supra note 4, at 1020. The cases were SSA v. 
Goodman, 19 MSPR 321 (1984); SSA v. Brennan, 19 MSPR 335, opinion clarified, 20 MSPR 
34 (1984), and SSA v. Balaban, 20 MSPR 675 (1984). 

^Id. at 156-57. 



94 Manual for Administrative Law Judges 



decisions annually per AU was reasonable,^ and that policies "designed to 
ensure a reasonable degree of uniformity among ALJ decisions are not only 
within the bound of legitimate agency supervision but are to be encouraged."^ 
But the same opinion also waxed critical and suspicious of the agency's 
policies. "To coerce ALJs into lowering reversal rates. . .would, if shown, 
constitute. . .'a clear infringement of judicial independence.'"**^ 

In a recent case, the MSPB stated that "a high rate of significant statutory 
error can establish good cause for disciplining an administrative law judge. . . 
"305 jjjg case was remanded and is still pending as this goes to press. 

About all this Manual can do is conclude that, in theory, the power of an 
agency to bring "good cause" actions against unproductive or incompetent 
judges certainly exists. So far, the MSPB appears to have been cautious in the 
actual application of that theory. This is understandable, and justified, because 
such actions could raise serious problems related to reconciling the need for 
professional competence with the need for adjudicative independence. Those 
problems are likely to be with us for the foreseeable future. In the meantime, 
it is probably safe to say that no AU should want to be the subject of a future 
case that tests an agency's power to discharge "for good cause" on grounds of 
demonstrably slack productivity. 



B. Confidentiality 

Although the judge presides over a hearing that in most agencies is open to 
the public, and compiles what will usually be a public record, there are aspects 
of the judge's duties that require confidentiality. When confidentiality is 
required, the judge should be above reproach. 

For example, there is the matter of the judge's decision. Until the decision 
is finally issued or published the judge should in no way reveal it to the 
parties, the agency, the agency staff, or anyone else except one's own staff and 
associates (who are themselves subject to the same rules). Maintaining this 
secrecy requires constant circumspection. 

On a matter related to duties of a more recent vintage, the judge must 
become especially sensitive to the need for confidentiality in certain phases and 



^-Nash V. Bowen. 869 F.2d 675. 680 (2nd Cir. 1989). 

Id. at 681. For another example of an opinion which seemed distinctly ambivalent, see 
Ass'n of Administrative Law Judges v. Heckler, 594 F. Supp. 1132 (D.D.C., 1984) (criticizing 
aspects of SSA management program, but refusing to issue injunction because ameliorative 
changes had been made to the program in the meantime.) 

^^04 SSA V. Anyel, Docket No. CB7521910009T1 (MSPB June 25, 1993). 



Administrative Conference of the U.S. 95 



kinds of alternative dispute resolution proceedings. A prime example here, of 
course, is the confidentiality customarily accorded mediation efforts,'*'* 
including mediation by settlement judges. ^^ 



C. Ex Parte Communications 

Ex parte communications should be avoided. Communications between the 
judge and one party, without the presence of the other party /parties, are always 
suspect. In formal adjudications governed by the APA, the ground rules are 
fairly clear and quite explicit. " Except to the extent required for the disposition 
of ex parte matters as authorized by law , [the judge] may not~(l) consult a 
person or party on a fact in issue, unless on notice and opportunity for all 
parties to participate. . . . "^ Moreover: 

[E]xcept to the extent required for the disposition of ex parte 
matters as authorized by law~ 

(A) no interested person outside the agency shall make or 
knowingly cause to be made to any. . .administrative law 
judge, or other employee who is or may reasonably may be 
expected to be involved in the decisional process of the 
proceeding, an ex parte communication relevant to the merits 
of the proceeding ; 

(B) no. . .administrative law judge, or other employee who is 
or may reasonably be expected to be involved in the 
decisional process of the proceeding, shall make or 
knowingly cause to be made to any interested person outside 
the agency an ex parte communication relevant to the merits 
of the proceeding; 

(C) a[n]. . .administrative law judge, or other employee who 
is or may reasonably be expected to be involved in the 
decisional process. . .who receives or who makes. . .a 



^'^See, e.g., ACUS Recommendalion 88-11, "Encouraging Settlements by Protecting 
Mediator Confidentiality," 1 CFR §305.88-11 (1992). 

'^'^See, e.g., 29 CFR §2200. 101(d)(3) (1991) (Occupational Safety & Health Review 
Commission). 

^5 U.S.C. §554(d) (1988) (emphasis added). 



96 Manual for Administrative Law Judges 



communication prohibited by this subsection shall place on 
the public record of the proceeding: 

(i) all such written communications; 

(ii) memoranda stating the substance of all such oral 
communications; and 

(iii) all written responses, and memoranda stating 
the substance of all oral responses described in. 
.this subparagraph. . . .^^ 

Moreover, the APA further provides that if a prohibited ex parte 
communication is knowingly made, the judge or other presiding officer, may 
(subject to agency policies and regulations) require the party making the 
communication to show cause why the party should not be dismissed as a party 
or otherwise sanctioned because of that violation."" The agency itself may be 
authorized to decide the whole case adversely to the offending party.'" 
Furthermore, many agencies have their own regulations relating to the 
handling of ex parte communications, which the judge should rigorously 
observe.''^ 

Some ex parte conversations are irmocent in the sense that the person 
approaching the judge is unaware that this action is improper. When such an 
incident occurs, the judge, in proceedings governed by the above-quoted 
provisions of the APA, must prepare a written memorandum describing the 
conversation and file it in the public record in the docket section. This also 
must be done when another common type of innocent ex parte communication 
occurs— letters to the judge relating to the merits of the case. 

Even for proceedings not covered by the APA, and even if the agency rules 
on ex parte contacts do not extend to the particular proceedings, a judge who 
has received ex parte communications on the merits probably should, in any 
event, make them part of the record. It is usually best to do one's utmost to 
remove any doubt about the proprieties of the matter. 



^5 U.S.C. §557(d) (1988) (emphasis added). 

"°5 U.S.C. §557(d)(l)(D) (1988). 

'"5 U.S.C. §556(d) (1988). 

''^5^e, e.g., 14 CFR §300.2 (DOT, Aviation Proceedings). 



Administrative Conference of the U.S. 97 



D. Bias and Recusal 

Another sensitive and special matter concerning the conduct of judges 
involves bias. "[AJn impartial decisionmaker is essential. "'•' Of course, no 
one is totally free from all possible forms of bias or prejudice. But the judge 
must conscientiously strive to set aside preconceptions and rule as objectively 
as possible on the basis of the evidence in the record. In addition, and despite 
a judge's subjective good faith, a judge who has a fmancial interest (even if 
small or diluted) in the outcome of a case should not decide that case.''* If 
grounds for finding bias truly exist, then recusing oneselP'^ is preferable to 
courting a later reversal and jeopardizing the validity of the whole 
proceedings. 



E. Fraternization 

In a related vein, conduct which creates an appearance of favoritism or bias 
also should be avoided. Public attitudes about judicial conduct have become 
stricter in recent years, and judges should be sensitive to this change. A judge 
should limit social activities with friends or colleagues if there is any 
likelihood of their being involved in matters coming before the judge. It is not 
enough merely to avoid discussing pending matters; a judge should shun 
situations that might lead anxious litigants or worried lawyers to think that the 
judge might favor or accept the views of friends more readily than those of 
unknown parties. The same considerations argue against social contacts with 
agency staff; any indication that the judge and staff are members of one happy 
family should be avoided. 

One approach is for judges to maintain their personal ties but disqualify 
themselves in any case in which a friend appears. If the bar is small this may 
be unfair to counsel and their clients, and impractical as well. An alternative 
course is to describe publicly the relationships whenever a friend or associate 
is involved and offer to disqualify oneself if so requested. However, this 
places an unfair burden on objecting counsel, who is put in the position of 
implying publicly that the judge may be biased. Also, if done frequently, this 
approach may seem to be avoidance of the judge's own responsibility. 

In any event, a judge must avoid the appearance of impropriety. Thus the 
judge should not regularly play bridge or golf or dine with lawyers whose 



''^Goldberg v. Kelly, 397 U.S. 254, 271 (1970). For an excellenl discussion of bias, see 
Federal Administrative Judiciary, supra note 4, at 967-974. 

^^'*See Ward v. Monroeville. 409 U.S. 57 (1972); Tumey v. Ohio, 273 U.S. 510 (1927). 
^'^5 U.S.C. §556(b)(1988). See also 5\ ALR Fed. 400. 



98 Manual for Administrative Law Judges 



firms may appear before him. Nor should the judge actively participate in 
politics or political meetings. ''* 

Judges must accept a certain amount of loneliness. They need not become 
recluses, but they should realize they are no longer "one of the gang." 



F. Individual Requests for Information 

The judge may receive requests for information from interested persons. 
The material sought may be confidential—such as which party will prevail, 
when the decision will be issued, and what effect it might have on the 
community. The judge should make every effort to explain courteously any 
refusals to answer. Sometimes, it may be possible, and appropriate, to deflect 
the inquiry with a suggestion that the person might be able to obtain additional 
information, and views, from sources not subject to judicial restraints, such as 
agency staff or private parties involved in the proceeding. 



G. Interaction with Other Independent Officers 

While there is little case law on the subject, at least one case, U.S. Navy- 
Marine Corps Court of Military Review v. Carlucci, has raised the issue 
concerning the extent to which independent adjudicative officers must 
cooperate with investigations of the Inspector General. ^'^ While generally 
acknowledging the statutory right of IGs to investigate a judge's 
misappropriation of funds, fraudulent claims, or other abuses of appointment 
[see Section 9.1(a) of the ABA standards], the Carlucci case addresses the 
issue of an allegation of impermissible use of ex parte information during a 
judge's deliberations. This raises a question concerning the judge's duty under 
Judicial Canons to uphold the independence and integrity of the court when an 
IG seeks to investigate matters involved in judicial deliberations even after the 
case has closed and a final decision has been rendered. Agencies can provide 
appropriate procedural rules to handle such issues within their adjudicative 
divisions to preclude such problems from arising. 



"federal administralive law judges are, of course, subject to the Hatch Act, 5 U.S.C. 
§§7321-7327 (1988), as amended by Pub. L. No. 103-94 (Oct. 6., 1993). 

^^^See United States Navy-Marine Coips Court of Military Review v. Carlucci, 26 M.J. 328 
(CM. A. 1988); discussed in Joseph H. Baum and Kevin J. Barry, United States Navy-Marine 
Corps Court of Military Review v. Carlucci: A Question of Judicial Independence, Federal Bar 
News AND Journal, Vol. 36, No. 5, June 1989. 242-248. 



Administrative Conference OF THE U.S. 99 



H. The Media 

The persistence of the press in a major or newsworthy case may be 
annoying at times, but the judge should cooperate, to the extent permitted by 
ethics and agency rules, in the circulation of public information about the 
proceeding. Questions about nonconfidential, public matters can be answered, 
so long as this does not interfere with the orderly conduct of the hearing. For 
example, the judge certainly may respond to queries about the place or time of 
the hearing or the length of a recess. The merits of the case, however, must be 
off-limits, both directly and by implication. The judge should not be 
interviewed under circumstances likely to lead to questions relating to the 
merits. 

Likewise, the judge should not give off-the-record or not-for-attribution 
interviews. If the material is not confidential, quotation should be permitted; 
if it is confidential, it should not be revealed in the first place. 

VIII. The Decision 

After receipt of all supplemental material and briefs the judge should 
prepare the decision, the findings of fact and conclusions of law. Agency rules 
and practice will govern the details of how the judge submits the decision to 
the agency and serves it upon the parties. The notice of decision should 
provide for filing of exceptions and briefs. 

Some agencies have authorized their administrative law judges to make the 
agency's decision, subject only to discretionary review by the agency."* The 
title page of such a decision should state that it is an agency decision issued 
pursuant to delegated authority (citing the pertinent rules) and the notice of 
decision should describe how and when petitions for review may be filed. Any 
order attached to the decision should include a similar statement. of delegated 
authority and should provide that, absent filing of a petition for discretionary 
review or review on the agency's own initiative, it will become effective as the 
final agency order after a specified time. The form for issuance of other 
decisions is similar, with such changes as are necessary to show that they are 
not final until affirmed by the agency or the agency review board. 



"*5ee ACUS Recommendation 68-6, "Delegation of Final Decisional Authority Subject to 
Discretionary Review by the Agency," 1 CFR §305.68-6 (1992). See also 29 CFR §2200.91 
(1991) (Occupational Safely and Health Review Commission); 17 CFR §12.101, .106 (1991) 
(CFTC, reparation cases). For an article discussing discretionary review by agencies, see 
Gilliland, The Certiorari-Type Review, 26 Admin L. Rev. 53 (1974). 



100 Manual for Administrative Law Judges 



The judge's jurisdiction usually ends upon the issuance of the decision, 
except that errors may be corrected by issuance of an errata sheet.'" This 
should be used to correct serious errors of substance only, never to correct 
obvious typographical mistakes or errors already the subject of exceptions. 



A. Oral Decision 

In cases involving few parties, limited issues, and short hearings the judge 
may save substantial time by rendering the decision orally—if permitted by 
agency rules or policies. However, it must be emphasized that agency rules or 
policies control. The rest of this section is relevant only to the extent that the 
judge has authority, in the first instance, to render an oral decision.'-" 

If the judge is authorized to issue an oral decision, the parties can be 
advised before the hearing to prepare for oral argument on the merits at the 
close of the testimony. After all evidence has been received and any 
procedural matters disposed of, the judge may recess the heanng for a few 
minutes to give counsel an opportunity to read their notes and prepare for oral 
argument. After listening to oral argument and rebuttal, the judge, perhaps 
after another short recess, may deliver the decision orally on the record. 

This procedure obviously increases the risk of overlooking some material 
fact or legal precedent, but in a case simple enough to truly warrant an oral 
decision, that risk is not substantial. There are, moreover, compensating 
advantages in addition to the time saved. If witness credibility is involved the 
demeanor and the actual testimony of the witness are fresh in the judge's mind. 

Some cases involving formal adjudications will be governed by the 
provision of the APA that entitles the parties to a reasonable opportunity to 
submit proposed findings or conclusions, and supporting reasons, before a 
recommended, initial, or tentative decision.'-' Advising the parties before the 
end of the hearing that an oral decision will be made at the close of the 



Form 14 in Appendix I is a sample errata sheet. 
^For some cases where ihe judge exceeded any authority to rule orally under agency rules 
or precedents in force at that time, see Local Union No. 195, United Ass'n of Journeymen and 
Apprentices of the Plumbing and Pipe Fitting Industry, 237 NLRB 931, 99 LRRM 1098 (1978); 
Plastic Film Products Corp. and Amalgamated Clothing and Textile Workers Union. AFL-CIO 
232 NLRB 722, 97 LRRM 1313 (1977). 
'2'5 U.S.C. §557(c) (1988). 



Administrative Conference of the U.S. 101 



hearing, and that parties desiring to submit proposed findings and conclusions 
should be prepared to do so orally, probably meets this requirement.'^ 

Sometimes, agency rules expressly authorize oral decisions. The Rules of 
Practice of the National Transportation Safety Board, for example, provide 
that "The law judge may render his initial decision orally at the close of the 
hearing. . .except as provided in § 82 1. 56(b). "'^ 

When an oral decision is issued from the bench the transcript pages upon 
which the oral decision appears constitute the official decision. No editing 
except typographical corrections should be made. A footnote should be 
inserted after the decision stating, in effect: "Issued orally from the bench on 
in transcript volume at page through page . "'^ 



B. Written Decision 

Most cases, because of their complexity, the size of the record, the number 
of parties, or the number of issues, do not lend themselves to oral disposition. 
The following discussion is directed to the drafting of written opinions, 
although some of the suggestions may also be applicable to oral decisions. 

Ideally, the judge starts planning the decision when the case is assigned. 
Each procedural step, including learning and shaping the issues, determining 
what evidence is needed, arranging for and obtaining essential material, and 
conducting the hearing, should be aimed toward producing a clear, concise, 



'^'^-See Charles E. McEIroy, 2 NTSB 444, 1973 NTSB Lexis 30 (Order EA-499, Docket No. 
SE-1772) (1973). However, it should be noted that this opinion seems to focus on compliance 
with the agency's rules. 

'-^49 CFR §821.42 (1991). For some other examples of agency rules authorizing the judge 
to render a decision orally, see 7 CFR §1. 142(c) (1991) (Department of Agriculture); 46 CFR 
§201.161 (1991) (Maritime Administration, DOT, referring to decision "orally rendered"). 

For examples of agency rules that expressly deal with the transcript of an oral decision, or 
otherwise reducing an oral decision to writing, see 7 CFR §1. 142(c)(2) (1991) (Department of 
Agriculture: copy to be excerpted from the transcript and furnished the parties by the Hearing 
Clerk); 39 CFR §961. 8(g) (1991) (U.S. Postal Service: written confirmation of oral decision to 
be sent to the parties); 49 CFR §821.42 (d) (1991) (NTSB, copy exceipted from transcript and 
furnished to parties). 



102 Manual for Administrative Law Judges 



and fair record. ^^ Any weakness or delinquency in these earlier steps makes 
the final task more difficult. 

Still, the most difficult writing problem usually occurs when the judge, 
facing an onerous deadline, assembles the transcript, exhibits, notes, and 
briefs, and starts to put down on paper the findings and conclusions. Each 
judge differs in writing habits, but all judges should strive constantly for 
improvement. 

Some aspects of decision-writing, like any other form of composition, 
probably cannot be "taught," at least not in the sense of learning some rote 
formula or mechanical "rules" that will make the judge rival Oliver Wendell 
Holmes as a wordsmith. Most of us probably have harbored mild envy, at one 
time or another, toward a colleague who seems to have a natural talent for 
writing. There are judges who seem to have a remarkable ability to organize 
the material, and to use language in a way that converts a thick, jumbled 
record into a coherent decision where everything falls into place, capturing the 
essence of what happened and what the case is about, and how it should be 
decided. Such a decision leaves the reader with a sense of inevitability—that 
this was the only way that this particular decision could have been written. 
Most judicial opinions fall short of such an ideal, but it is a goal worth 
keeping in mind. It generally takes considerable effort and experience to attain 
such a state of craftsmanship.'^ 

In the meantime, there are certain approaches, procedures, and tools that 
may help to make deciding and writing the case easier. Some of these will be 
the focus of the rest of this chapter. 

1. Format 

No rigid structure can be prescribed for all written decisions, but some 
uniformity in basic outline is customary. Every decision should contain 
certain preliminary material, including a title page with the name of the case, 
the type of decision {e.g., initial decision or recommended decision), the date 



^'^Form 23 reflects one judge's innovative effort to keep the record and materials organized 
by using the ongoing computer revolution. In complex cases, Judge Tidwell, U.S. Court of 
Federal Claims, sometimes issues an order requiring parties to supplement their usual paper 
filings by providing the court with electronic copies (on floppy disk) of filings which are greater 
than two pages in length. Using the search capabilities of word processing programs such as 
WordPerfect, Judge Tidwell is able to locate information and points in the materials much more 
efficiently than otherwise could be done by trying to visually scan hundreds of pages of material. 
Letter from Judge Moody R. Tidwell, U.S. Courtof Federal Claims, dated April 3, 1992, to 
Morell E. MuUins. 

^^For an excellent but brief article, see Slander, Administrative Decision Writing, 10 (J. OF 
THE Nat'l Assoc. OF Admin. L. Judges) 149 (1990). 



Administrative Conference of the U.S. 103 



of issuance, and the name of the judge. If the decision is long, there should be 
a table of contents. Also, a list of appearances should be included, with the 
names of all persons and organizations who entered an appearance and the 
persons and organizations represented. The name and address of each person 
on whom the decision is to be served should be included on a service sheet, 
usually attached at either the beginning or end of the decision. 

The form of the text depends largely on the nature of the case, agency 
practice, and the judge's style. The following suggestions may be helpful: 

(a) The opening paragraphs should describe succinctly what the case is 
about. They may include a summary of the prior procedural steps and the 
applicable constitutional provisions, statutes, and regulations. 

(b) Although the relief requested by the parties may be described in the 
introduction, detailed contentions should not be recited. These lengthen the 
opinion unnecessarily since, if they are material and relevant, they must be set 
forth in detail in discussing the merits. Not observing this proscription is a 
common failing in opinion writing. 

(c) If proposed findings and conclusions have been submitted, the ruling 
on each of them should be apparent from the decision, ^-^ so the judge does not 
necessarily need to refer to each of them specifically.'^ Likewise, 
insignificant or irrelevant issues raised by the parties need not be addressed 
specifically but can be disposed of with a statement that all other questions 
raised have been considered and do not justify a change in the result.'^ 
However, a judge must be extremely careful in applying this principle. If the 
agency or a reviewing court disagrees about the significance of a particular 
issue, remand may result.'^ 

(d) The decision should include specific findings on all the major facts in 
issue without going into unnecessary detail."' 

(e) The judge should apply the law to the facts and explain the decision. 
Whether the facts, law, and conclusions should be combined or placed in 
separate sections of the decision depends on the agency's requirements, the 



"'5 U.S.C. §557(c) (1976). 

'transcontinental Coach Type Service Case, 14 CAB 720 (1951). Cf. Michigan Consol. 
Gas Co. V. FPC, 203 F.2d 895 (3d Cir. 1953). 

'^n Northwest Air Service, Operating Authority, 32 CAB 89, 97-98 (1960), the Board 
denied a motion requesting a specific ruling by Ihe judge on each proposed finding. For a similar 
holding, see Allegheny Segment 3 Renewal Proceeding, 36 CAB 52, 54, n. 3 (1962). 

'■'*' See. e.g.. Affiliation of Arizona Indian Centers, Inc. v. Dept. of Labor, 709 F.2d 602 
(9lh Cir. 1983); P&Z Company, 6 OSHC (BNA) 1 189, 1977 OSHD P22,055) (1977). 

'"5ee, e.g., People for Environmental Enlightenment and Responsibility (PEER) v. 
MinnesoU Environmental Quality Council, 266 N.W. 2d 858 (Minn. 1978). 



1 04 Manual for Administrative Law Judges 



judge's style and such other factors as the type of case and the nature of the 
record. 

(f) The decision should end with a summary of the principal findings of 
fact and conclusions of law. In addition to making specific findings and 
conclusions, there should be ultimate findings framed in the applicable 
statutory or regulatory language. '^^ 

In a case involving many issues or complicated facts, the decision can be 
divided into labeled sections and subsections, with appropriate titles and 
subtitles. This will usually make reading, studying, and analysis of the 
decision easier and quicker. These divisions, with their titles, should be set 
forth in the table of contents. 

Frequently, adopting a framework, or outline, for the decision with 
appropriate headings before drafting the decision will make organizing the 
record, deciding the issues, and writing the conclusions easier and clearer. 
This outline can, and probably should, change as the decisionmaking 
progresses. 

(g) Footnotes should be used for such material as citations of authority and 
cross-references, but rarely for substantive discussion. Footnotes on each page 
are preferable to a numerical listing of notes (endnotes) at the end of the 
opinion or in an appendix. The latter arrangement is inconvenient for the 
reader and hinders careful reading of the decision. 

(h) Citations must be sufficiently detailed to enable the researcher to find 
-the source without difficulty. This can be assured by using a standard 
reference work."^ 

(i) Maps, charts, technical data, accounts, financial reports, forecasts, 
procedural details, and other germane background material too lengthy to be 
included in the text may be attached as appendices. 

(j) In many cases the judge issues an order or proposed order. In some 
cases other actions are appropriate. For example, in franchise cases, a 
certificate must sometimes be issued or amended. Such documents should 
usually be added as supplements to the decision. 



^^^Expressly setting out "ultimate" findings in words that track the statutory language or 
criteria is a precaution that is strongly advisable because there are older Supreme Court cases that 
suggest that such findings cannot be inferred from the decision's other findings and conclusions. 
See Yonkers v. United States, 320 U.S. 685 (1944); Wichita Railroad v. Public Utilities 
Commission, 260 U.S. 48 (1922). But see Penn Central Merger Cases, 389 U.S. 486 (1968). 

•'"£.^., A Uniform System of Citation (15lh ed. 1991) (commonly referred to as the "Blue 
Book"). 



Administrative Conference of the U.S. 105 



2. Research 

The judge must study the record and make an independent analysis of the 
facts and contentions. This requires careful examination of legal and policy 
precedents of the agency and of the courts. 

In some agencies technical assistants may be available to administrative law 
judges to help analyze and cross-index detailed or complicated data. At other 
agencies law clerks are available to provide this help.'" 

In researching agency decisions the judge should cover those not yet 
published in the bound volumes of the official reports. Many agencies have a 
section charged with indexing and digesting decisions and orders; the judge 
should enlist its help in finding relevant agency authority. Some agencies 
maintain a list of all their cases appealed to the courts and supply their judges 
with current copies.''^ 

The judge may also seek the advice of the senior judges of the agency, who 
may recall a relevant case that has escaped the attention of other researchers. 
Of course the standard research texts should also be used—notably the 
commercial services, texts, and law reviews. Moreover, the judge must take 
advantage of the on-going revolution in electronic databases and computer- 
based electronic research. Today's commercially available services, such as 
Lexis and Westlaw, enable a user to conduct legal, and other, research in ways 
that simply would not have been feasible for a decision-writer laboring under a 
heavy caseload and time deadlines 10 years ago. For example, a judge using 
computerized legal research services literally could have at the fingertips every 
case decided by a particular agency, if the agency's cases are in the relevant 
database. Every case "in the computer" mentioning a particular regulation can 
be retrieved with a few strokes on a keyboard. Or, a judge could locate almost 
every reference in the CFR (except perhaps the changes that have only been 
recently published) to a term like "in camera." Research that took hours, or 
simply could not have been done without poring for days over printed 
materials, can be finished in minutes, using computerized legal research. The 
main problem, of course, is that the cases or other materials for which the 
judge is searching must first be in the particular data base. 

Another convenient source of information about relevant facts, policy, and 
law is the briefs of the parties. Proposed findings of fact and conclusions of 
law, if reliable, can save the judge time and effort. Of course, the judge must 



'^For an article dealing with legal and technical assistants, see Malhias, The Use of Legal 
and Technical Assistants by Administrative Law Judges in Administrative Proceedings, 1 ADMIN. 
L.J. 107(1987). 

^^^See, e.g., cases collected by the now-defunct CAB, in its Compilation of Court Cases of 
the Civil Aeronautics Board. 



106 Manual for Administrative Law Judges 



consider the reliability of counsel or the party, or both. But it is certainly 
acceptable to make proper use of proposed findings and conclusions.^^ 

Although this use of counsel's briefs and arguments is beneficial the judge 
alone is responsible for the decision. The judge must use the utmost care to be 
sure that findings of fact are supported by the record and the conclusions of 
law by reliable precedent. This may require study of the legislative history of 
relevant statutes or review of the law of another agency that regulates a similar 
industry or activity. 

3. The Decisional Process 

The cornerstone of the formal administrative process is the principle that 
the decision of the administrative law judge is an independent intellectual 
judgment, based solely upon the applicable law (including agency regulations 
and precedent) and the facts contained in the record. TTiis has several 
consequences. 

Unless properly entered into the record of the case, the judge should not 
consider public or private statements of agency members, Congressmen, 
congressional committees, or administration officials. Other than statements 
that are considered part of the legislative history of the relevant statute, the 
only nonrecord pronouncements of government officials relevant to the 
decision are official and operative pronouncements—agency rules and 
decisions, but not policy statements by the agency members; current Executive 
Orders, but not speeches by administration officials; statutes and relevant 
legislative history, but not newspaper interviews of Congressmen. 

Such statements, however high the source, are normally made without 
benefit of the facts and arguments developed in the hearing process. Still more 
important, in many cases the APA would prohibit the use of matters which are 
not on the record. "The transcript of testimony and exhibits, together with all 
papers and requests filed in the proceeding, constitutes the exclusive record for 
decision in accordance with section 557 of this title.""' Even if the 
proceedings are not controlled by the APA's statutory limitations, it is still the 
better part of judging to avoid basing a decision on anything extraneous to the 
record.^'* 



^^See, e.g., Schwerman Trucking Co. v. Gartland Steamship Co., 496 F.2d 466, 475 (7ih 
Cir. 1974). 

'"5 U.S.C. §556(e) (1988). This section also provides for official notice. 

"*5^f Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir. 1977) (rulemaking). But see 
Action for Children's Television Network v. FCC, 564 F.2d 468 (D.C. Cir. 1977) (rulemaking); 
Sierra Club v. Costlc, 657 F.2d 298 (D.C. Cir. 1981) (rulemaking). While the cases cited here 
involved rulemaking of one sort or another, and (in the main) eir pane contacts at agency head 



Administrative Conference of the U.S. 107 



A few words are necessary concerning the relationship which the decision 
should bear to the established policies of the agency. Those words are: It is 
the judge's duty to decide all cases in accordance with agency policy. 

This duty can be especially perplexing in at least two types of situations. 
First, court decisions (other than those of the Supreme Court) may have found 
the agency's policy or view to be erroneous, but the agency disagrees, and 
announces its "nonacquiescence. " In this case, the agency takes the position 
that the judge is bound to apply the agency view if the agency has 
authoritatively declared nonacquiescence."' Nonacquiescence has been 
strongly criticized by some reviewing courts.^'*' 

Second, the judge may have to decide a case under statutory criteria that 
are open-ended, such as "public interest," and the agency's decisional 
precedents are policy-intensive, rather than strictly legalistic. On the one 
hand, if the judge operating under such a regime can discern the agency 
policy, then the judge's decision must adhere to that policy. On the other 
hand, if the parties have introduced evidence or arguments not previously 
considered by the agency, or if there are facts or circumstances indicating that 
reconsideration of established agency policy may be necessary, the judge has 
not only a right but a duty to consider such matters and rule accordingly. 

A more extended discussion of an example may be appropriate at this 
juncture. At the old Civil Aeronautics Board, labor protective conditions were 
an issue in most merger cases. Historically, the Board adopted, with certain 
modifications, conditions similar to those used in the railroad industry.^' 
Although the fairness of these conditions was frequently attacked, the Board, 



level, the point in the text remains the same. The administrative law judge's use of extra-record 
materials is likely to provide colorable grounds for appeal, at the very least. 

^^^See Insurance Agents International Union, 119 NLRB 768 (1957). 

■'^^thaca College v. NLRB, 623 F.2d 224 (2d Cir. 1980). For a case which recognizes that 
the ALJ is somewhat whipsawed if an agency is "nonacquiescent," see Hillhouse v. Harris, 547 
F. Supp. 88, 93 (W.D. Ark. 1982), ajSTd, 715 F.2d 428 (8th Cir. 1983) (referring to AU being 
in the position of trying to serve two masters, the courts and the Secretary of Health and Human 
Services). "Nonacquiescence" has generated a substantial number of law review articles, among 
them, Diller & Morowetz, Intracircnil Nonacquiescence and the Breakdown of the Ride of Law: A 
Response to Estreicher and Revesz, 99 Yale L.J. 801 (1990); Estreicher & Revesz, The Uneasy 
Case Against Intracircuit Nonacquiescence: A Reply, 99 Yale L.J. 831 (1990); Estreicher &. 
Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YalE L.J. 679 (1989); J. 
Schwartz, Nonacquiescence, Crowell v. Benson, and Administrative Adjudication, 11 Geo. 
Wash. L.J. 1815 (1989) Weis, Agency Non-Acquiescence: Respectful Lawlessness or Legitimate 
Disagreementt? , 48 U. Pm. L. Rev. 845 (1987); Note, Administrative Agency Intracircuit 
Nonacquiescence, 85 COLUM. L. Rev. 582 (1985). 

'^'United-Capital Merger, 33 CAB 323, n. 71 (1961). 



108 Manual for Administrative Law Judges 



with minor changes, adhered to these basic rules at least through 1970. ^^ In 
1972, in the Allegheny-Mohawk Merget^*^ and the Delta-Northeast Merger,'^ 
two judges independently considered the standard CAB labor protective 
provisions in light of current economic conditions and recommended 
modifying them. The Board considered these modifications and adopted some 
of them, with two dissenting Board members arguing for additional changes. 
In view of the Board's prior action on this issue and its staffs approval of the 
historical standard labor protective clauses in these cases, it is unlikely that the 
Board would have considered the need for changes had the issues not been 
raised by its judges. 

Although the judge should follow agency policy and the law, the judge's 
decision may be the last opportunity to call the attention of the agency (or the 
courts if the agency denies review) to an important problem of law or policy. 
A judge who is wrong can easily be reversed, but a judge who is correct may 
prevent substantial inequity and injustice. Such action cannot be taken lightly 
but must reflect long and careful research and analysis. The judge's facts and 
reasoning, based on the record and the law, should be so clearly set forth that 
the agency will know exactly what has been done and why. 

Turning to another delicate subject, the judge also must preserve the 
integrity of the decisional process in ways that are less obvious. For instance, 
the judge should never write a decision motivated by a desire to curry favor 
with the current heads of the agency, or based on considerations of the result 
that the judge thinks the current agency heads subjectively want. A judge's 
responsibility is to follow agency policy, or where necessary in a case of first 
impression, establish a policy consistent with existing agency policy. 
Attempting merely to predict future agency votes would be an abdication of 
this role. The whole purpose of the judge's decision is to give the agency the 
benefit of a considered decision after a proceeding specifically designed to 
elicit the truth. Nothing whatever is gained, and a lot can be lost, if a judge's 
decision seeks to set before the agency members only a mirror of their own 
thoughts, no matter how obtained. 

It follows that the judge should not be swayed by any tentative finding of 
fact or tentative conclusion of law or policy contained in an order of 
investigation, an order to show cause, or any other action by which the agency 
has indicated how it may be thinking. Such premature findings may be based 
on staff recommendations and, although necessary for procedural reasons, are 
not the agency's final decision. Indeed, to attribute that kind of finality to 



^-Northwest-Northeast Merger, 55 CAB 742, 753-756, 759 (1970). 
^^59 CAB 19, 31-40, 42-44, 69-77 (1972). 
^59 CAB 608, 633-36, 692-702 (1972). 



Administrative Conference of the U.S. 109 



preliminary agency determinations would be to flirt with violations of 
procedural due process. ^^ 

Agency staff's views should be subjected to the same impartial scrutiny as 
the views of any other interested persons. The staff position is not 
automatically correct merely because it is put forward as an objective, 
untainted furthering of the public interest. It is the judge's responsibility to 
decide where the public interest lies, and the theory of the system presumes 
that this is best achieved by an impartial weighing of all facts and arguments. 

Turning to more mechanical aspects of decisionmaking, the judge 
sometimes must exercise discretion in determining which issues in a complex 
case to consider first—but once an issue that is determinative is decided the 
judge usually should proceed no further. It may be argued that if the agency 
disagrees as to the single decisive issue it will not have the benefit of the 
judge's independent analysis and recommendation on alternative issues. 
However, in a complex case the major issues are so numerous that to decide all 
of them in their various combinations could be a waste of time and generate an 
unreasonably long and complicated decision. It will likely be quicker and 
easier for the agency (if it disagrees with the judge) to develop one alternative 
dispositive issue than it is for the judge to develop a dozen alternatives 
initially. Nevertheless, in a case where the decision is close on either of two 
determinative issues, or where two important policy or legal issues are raised, 
it may be advisable to decide both. 

The judge should not uncritically accept the parties' contentions as to 
which issues are decisive; through lack of skill, abundance of cunning, or 
excessive zeal, such premises may be erroneous. After analyzing the record 
and reading the briefs the judge should make an independent determination of 
the decisive issues and focus the decision on those issues, regardless of the 
parties' emphasis. 

A decision must not, however, rest upon a point which has not been raised 
at the hearing, in briefs, or in oral argument. Thorough preparation and 
proper management of the earlier stages of the proceeding should avoid this 
problem; but if, after the proceeding has been concluded, the judge finds an 
unexplored issue that may be dispositive, at a minimum, supplementary briefs 
or memoranda should be requested. 

The judge should decide all the issues necessary to dispose of the case 
unless circumstances indicate that some or all should be deferred. A decision 
may be deferred, for example, if it would be affected by the outcome of an 
appeal pending before the agency,''^ or before the Supreme Court. '^^ 



^^See Wiihrow v. Larkin, 421 U.S. 35 (1975). 

^^See Flying Tiger-Additional Points Case, 58 CAB, 319, 322, 364, 365 (1971). 



1 10 Manual for Administrative Law Judges 



However, there may be countervailing constraints, such as statutory time limits 
within which to issue a decision. These can limit the judge's authority to defer 
rendering a decision. 

If in the course of hearing and deciding the case the judge discovers facts 
that indicate agency action may be necessary on other issues, reconmiendations 
for institution of another proceeding may be appropriate. For example, in a 
case involving the desirability of extending weekend family air fares to other 
days of the week, the judge realized that the legality of all family fares should 
be investigated, and recommended that the agency start such a proceeding.^** 
The agency did so.'^' 

If the parties timely raise new procedural questions after the close of the 
hearing, such as a motion to strike all or part of a brief, the judge should rule 
on them in the decision if practicable. However, when the question must be 
ruled upon before decision, such as a motion to receive newly discovered 
evidence, the judge should rule upon it promptly, deferring issuance of the 
decision if necessary. But if the parties merely renew procedural motions or 
objections made and disposed of at the hearing, the judge should let the record 
speak for itself unless new matters are presented that require further action or 
discussion. 

4. Style 

Administrative cases frequently involve complicated technical matters, 
statistical concepts, intricate details and abstract ideas. The judge should strive 
to present these in a fashion that a layman can understand. Technical or 
abstruse words should be avoided if possible; if not, they should be explained 
in a footnote. 

Decisions should be as brief as the subject matter permits. Complicated 
statistical, financial, and scientific questions frequently require detailed 
analysis, computations, or calculations. If these are included in the text, the 
opinion may become unnecessarily complicated, difficult to comprehend, and 
unreasonably long. It is frequently preferable to include only the basic 
findings in the text and place the detailed material in appendices. 

Sometimes factual findings should be supported by specific citations to the 
record. If, for example, a factual determination is based on a single item of 
evidence, the transcript reference should be given; or if in a case the judge 
makes independent computations from the conflicting bases and theories of 



■*^'This practice is, of course, common among the lower federal courts. See, e.g., U.S. v. 
Hayles. 492 F.2d 125 (5lh Cir. 1974). 

^Capital Family Plan Case, 26 CAB 8, 9 (1957). 
^"'Family Excursion Fares E-11867 (CAB. Oct. 11, 1957). 



Administrative Conference of the U.S. 1 1 1 



different parties, citations to the record should be included, showing the 
derivation of each computation. However, a determination on a major factual 
question frequently results from consideration of numerous items of testimony 
of varying weight. In such circumstances, excessive references to the record 
can be misleading to the reader. The substance of the decision must be 
anchored in the record, but the number and selection of citations to the record 
in some respects is a matter of style. 

If the evidence is conflicting, but a finding essential, the judge may be 
tempted to compromise by using weak phrases such as "it appears" or "it 
seems." The judge should not try to evade responsibility in this fashion. A 
finding must be positive. 

It may occasionally be desirable to quote directly from the transcript of the 
oral testimony. This device can be effective for emphasis, but should be used 
carefully. Long verbatim excerpts from the transcript may be unclear and 
prolix, and editing them for the opinion may lead to charges of selective 
quotation. 

With respect to a sometimes-overlooked resource that is available to the 
judge, it is frequently advantageous to borrow directly from a brief—a 
document which is, after all, part of the record and drawn for the sole purpose 
of assisting the judge. If counsel has submitted an objective finding of fact or 
an articulate statement of law or policy with which the judge entirely agrees, it 
is wasted effort to recast it in other words. However, wholesale incorporation 
by reference of a party's entire brief and proposed findings, of course, 
ordinarily should be avoided. 

It may sometimes be necessary for the decision to contain derogatory 
findings about a particular individual. If, for example, the testimony of a 
certain witness contradicts one of the findings, the judge may have to explain 
why the witness was not competent or credible. This should be avoided if 
possible without weakening the opinion; but if and when it is necessary, the 
criticism should be as mild as the integrity of the decision will permit. 
Similarly, if it is necessary to correct an error or refute an absurd argument, 
the name of the person responsible should be omitted if that will not impair the 
coherence of the decision. Although the judge should not needlessly offend or 
insult any person, the decision should be scrupulous in stating the facts 
accurately and clearly. 

Where credibility is in issue the reviewing authority may look to the 
judge's demeanor findings on the theory that the judge observed the witness 
and therefore was in the best position to evaluate the witness' credibility. 
Consequently, the judge should exercise extreme care in such findings, and 
avoid conclusory statements such as "from the witness' demeanor it is 
concluded that the testimony cannot be believed." Instead, credibility findings 
should be supported by specific conduct or observations. For instance, a 



1 12 Manual for Administrative Law Judges 



witness may be talkative and comfortable in response to all questions, except 
those addressing the issue on which credibility is doubtful, but whenever the 
questioning turns to that issue, the witness becomes evasive and starts looking 
away from the judge and toward counsel, as if for signals. At any rate, to the 
extent possible, findings grounded on witness demeanor should have some 
reference point in observed behavior, such as evasiveness, hesitancy, or 
discomfort under questioning. 



C. Writing the Decision 

The ability to conduct a hearing and decide a case fairly and accurately is 
crucial, but an inability to clearly and concisely explain the resulting decision 
impairs the value of all other aspects of the judge's performance. Writing is a 
difficult art, and despite high qualifications, writing experience, and training, 
a judge may sometimes have difficulty putting findings and thoughts on paper. 
Except for the fortunate few endowed with exceptional writing ability, each 
judge must constantly work on maintaining and improving this skill. 

The inferior quality of much legal writing has inspired corrective action by 
many schools, writers, teachers, and critics. Some federal agencies have 
attempted to improve their written materials. See, for example: 

U.S. Environmental Protection Agency, Be a Better Writer 
(1980). 

U.S. Department of Housing and Urban Development, HUD 
Handbook 010. \, Chap. 5 and Appendix 3. 

Congressional Budget Office, A Style Guide for CBO: About 
Writing and Word Usage (\9S4). 

In addition, there are numerous excellent books on style and writing simple 
English. Some of special relevance to lawyers and judges are set out in 
Appendix III. 

Legal writing need not be complex or confusing. Judge John M. 
Woolsey's opinion in the Ulysses Case,^^ familiar to many judges, is an 
example of clear judicial writing: 

II. I have read 'Ulysses' once in its entirety and I have read 
those passages of which the Government particularly 
complains several times. In fact, for many weeks, my spare 



'^United Sutes v. One Book Called Ulysses, 5 F. Supp. 182 (S.D.N.Y. 1933). 



Administrative Conference of the U.S. 1 13 



time has been devoted to the consideration of the decision 
which my duty would require me to make in this matter. 

'Ulysses' is not an easy book to read or to understand. But 
there has been much written about it, and in order properly 
to approach the consideration of it, it is advisable to read a 
number of other books which have now become its satellites. 
The study of 'Ulysses' is, therefore, a heavy task. 

III. The reputation of 'Ulysses' in the literary world, 
however, warranted my taking such time as was necessary to 
enable me to satisfy myself as to the intent with which the 
book was written, for, of course, in any case where a book is 
claimed to be obscene it must first be determined, whether 
the intent with which it was written was what is called, 
according to the usual phrase, pornographic—that is, written 
for the purpose of exploiting obscenity. If the conclusion is 
that the book is pornographic that is the end of the inquiry 
and forfeiture must follow. 

But in 'Ulysses,' in spite of its unusual frankness, I do not 
detect anywhere the leer of the sensualist. I hold, therefore, 
that it is not pornographic. 

In writing on a difficult legal question involving a book written in an 
unconventional manner. Judge Woolsey's use of "I" is particularly striking. 
For a case of this type involving somewhat subjective standards the use of the 
first person makes his thinking clear. It emphasizes that this decision, the law, 
and the book, Ulysses, deal with human beings. The only legal words in the 
excerpt quoted are "I hold, therefore." The language used is clear and simple 
English, and it tells clearly what he did personally to reach his decision. The 
decision is four pages long. The complete opinion contains a few unusual 
words and several long ones, but the entire opinion and the reasons for Judge 
Woolsey's action are easily understood by a layman. 

Most judges do not write with the elegance of Judge Woolsey. Sometimes, 
they simply do not have enough time to revise and rewrite. Nevertheless, they 
at least should strive to write simply enough so- that anyone can understand 
them. Plain, simple English is more likely to convey a judge's findings to the 
reader than complicated legalistic phrasing. 

Nothing suggested in this book will be sufficient to give any judge the 
smooth and clear legal writing ability to which all judges aspire. Nevertheless, 



1 14 Manual for Administrative Law Judges 



there are certain customs and patterns, which, if followed, can make the 
judge's decision shorter and easier to read. 

Set out below, therefore, are several areas in which improvement is 
frequently needed. Study of this material can serve as a starting point for a 
judge seeking greater skill. No attempt is made to give a mini-course in 
writing or a review of grammar. This discussion deals primarily with matters 
of brevity, clarity, and stylistic quirks. Thorough discussions of these subjects 
and related matters of style and grammar will be found in books cited in 
Appendix III. 

1. Brevity 

a. Needless Words 

Strunk and White's The Elements of Sryle is a good place to start. This 
book of only 85 pages is filled with clear suggestions for making writing more 
readable. The authors, emphasizing that one should omit needless words, say: 
"A sentence should contain no unnecessary words, a paragraph no unnecessary 
sentences, for the same reason that a drawing should have no unnecessary lines 
and a machine no unnecessary parts. This requires not that the writer make all 
his sentences short, or that he avoid all detail and treat his subjects only in 
outline, but that every word tell."'^' 

b. Short Simple Words 

Long, cumbersome, and confusing words and phrases are used frequently 
by professional and business people including judges, lawyers, and teachers. 
There are, no doubt, numerous reasons for this tendency, such as a desire for 
precision, a desire to impress a client, or the tendency to use highly technical 
words even though one is writing for the layman. 

Sometimes, the longer word or phrase is merely a short word lengthened 
unnecessarily—a kind of inflation. A classic example is substitution of utilize 
for use. Unfortunately, the tendency to utilize, rather than use, remains 
prevalent. A few examples of the "longer word" problem follow, but their 
number is legion. 



"'William Strunk, Jr. & E. B. White, The Elements OF Style 23 (3d ed. 1979). 



Administrative Conference of the U.S. 



115 



Long 


Short 


finalize 


finish, complete 


effectuate 


effect 


preplan, plan ahead, plan in advance 


plan 


point in time 


time 


at the present writing 


now 


are bound to be in agreement 


agree 


in the not too distant future 


soon 


have duly noted the contents of 


have read 


to the fullest possible extent 


fully 


along the lines of 


like 


regardless of the fact that 


although 


under circumstances in which 


when 


in reference to 


about 


in the event that 


if 



Use the longer words or phrases only if the shorter ones will not do. 

c. Redundant Phrases 

Lawyers habitually group two or more words meaning the same thing, such 
as null and void; last will and testament; rest, residue, and remainder; 
transfer, convey, and pay over, or alter, change, or modify. If a lawyer is 
trying to impress a client, well-known redundant phrases may be helpful, but 
even that is doubtful. Probably more clients are annoyed by needlessly 
repetitious language than are impressed by the use of stock phrases. 

A judge needs only to explain to the readers— the parties and their 
attorneys, the agency, the interested public, and perhaps a reviewing court— 
what was done and why. A reader does not like words that confuse or words 
that are used for display. A reader wants only to learn with minimum time and 
effort what the judge said. 

d. Short Sentences 

Long sentences are hard to understand. A timeless motto for writers is, 
"Short sentences can be read; long sentences must be studied."'" The judge 
should state facts and reasons in terms easily understood by the layman as well 



'^^The revisor of the present edition cannot recall the source of this quotation, but reluctantly 
disclaims authorship. 



1 16 Manual for Administrative Law Judges 



as by the lawyer. By the use of a few connecting words with short sentences it 
is frequently easy to make the story flow evenly. Even if the use of simple 
words and short sentences in an opinion results in a little jerkiness that a stylist 
might avoid, little is lost so long as the meaning is clear. 

Tests over a 7-year period show that the average sentence length in popular 
magazines has been kept between 12 and 15 words.^" Although a judge may 
argue that a legal decision is more important and deals with deeper subjects 
than those in popular magazine articles, ease of reading and comprehension are 
surely as important in the documents that rule our lives as in those that 
entertain us. 

Long sentences make writing hard to understand. The reader, either 
consciously or subconsciously, needs a break. Furthermore, one thought per 
sentence is easy to understand. Therefore, break up long sentences. Aim to 
keep average sentence length below 25 words. Try to separate a long 
compound sentence into two or more shorter sentences. 

A related problem is the questionable connection of two sentences by the 
word however. 

He was driving only 30 miles per hour, however, this was 
too fast. 

One way to revise such a sentence: 

He was driving only 30 miles per hour. This was too fast. 

Occasionally thoughts are so interrelated that one sentence with several 
clauses and phrases may seem essential. However, if no matter how arranged 
it is still difficult to understand, then break up the sentence into three or four 
parts. Clarity is more important than stylish beauty. 

Sometimes even breaking up a sentence or rewriting it does not clarify the 
meaning. The reason may be that the thinking is not sound or the facts are 
inconsistent. This applies not only to sentences but to paragraphs and even 
entire decisions. As Dean Landis said: 

Any judge can testify to the experience of working on 
opinions that won't write with the result that his conclusions 
are changed because of his inability to state to his satisfaction 
the reasons on which they depend. . . .'^^* 

If a thought does not look right on paper, consider backing up for a 
rethinking or an entirely new approach. What you believe initially to be 



^"R. Gunning, Technique OF Clear Writing 34 (1968). 
^^■•j. Landis, The Administrative Process 105 (1938). 



Administrative Conference of the U.S. 1 17 



stylistic problems in expressing the idea or point actually may be symptoms of 
more basic defects in the substance of the idea or point. 

e. Paragraphs 

Although a paragraph is used to group thoughts, there is no rigid rule for 
length of a paragraph. A paragraph may vary in length from a one word 
sentence to many sentences of substantial length and complexity. 

Paragraph length should depend on what the writer is trying to 
communicate. Still, the writer needs to seek a balance between extremes. On 
the one hand, large blocks of print scare the reader. On the other hand, 
several short paragraphs in succession may be annoying. Most good 
paragraphs have between 2 and 10 sentences. If a paragraph seems too long, it 
is usually possible to divide it into two or more paragraphs without disturbing 
or distracting the reader. 

2. Punctuation 

Punctuation is the simplest device for making things easier to read. It is 
also an important road sign to the reader: i.e., making it easier to understand 
the intended meaning of a passage. Punctuation can be used to emphasize, to 
clarify, and to simplify. Commas, semi-colons, periods, hyphens, dashes, and 
all the other punctuation symbols have specific purposes. If used correctly they 
will simplify writing and make your writing easier to read. Useful rules can 
be found in the U.S. Government Printing. Office Style Manual,'" and other 
grammar and style manuals. Rules vary somewhat, but reliance on any 
standard work should suffice to keep meanings clear and easy to understand. 

3. Active or Passive Voice 

Use of the active voice rather than the passive voice is frequently preferable 
for two reasons. First, it saves words: 

The convict was sentenced by Judge Jones. 

Judge Jones sentenced the convict. 
Second, it is more likely to reveal who the actor is: 
Drivers' licenses will be issued. 

The clerk will issue drivers' licenses. 



^U.S. Government Priming Office, Rev. Ed. (1984). 



118 Manual for Administrative Law Judges 



In addition, the active voice is normally more direct and vigorous. The 
subject of the active-voice sentence is acting or doing something. 
Consequently, the active voice should be used in the absence of a good reason 
for using the passive. 

This does not mean that the passive voice always should be avoided. To 
the contrary, passive may be preferable when the thing done is important and 
who did it is not, or when the actor is unknown or indefinite. The passive 
voice can also be used for emphasis, or when detached abstraction is desired. 

4. Ambiguity 

Avoid the ambiguous. Like much advice, this is easier said than done. 
Often we do not realize that what we have said or written could be susceptible 
to more than one meaning: "This brief reads like a first draft dictated to a 
stenographer needing improvement." Sometimes we even refuse to see the 
ambiguity in our words when it is pointed out. At any rate, ambiguity slows 
and confuses the reader. It may even be used as a deliberate way to deceive. 

Ambiguity may be especially likely when the writer uses a word with two 
meanings or two words with the same meaning near each other. For example, 
a lawyer or a judge should not use "exception," meaning an exclusion, in, or 
near, a sentence containing "exception" used as a legal term meaning a formal 
objection. (If this shortcoming occurs frequently in a piece of writing, it may 
be a clue that the piece is a first draft, possibly dictated to a machine or 
stenographer.) 

When a writer deliberately uses, for the sake of "variety," two words 
meaning the same thing, the potential for ambiguity is no less. Problems 
resulting from deliberately using different words meaning the same thing, 
especially in the same passage of a decision or document, are discussed in the 
section on Elegant Variation. 

In a related vein, some people cannot bear to repeat a name or proper noun 
anywhere near its original use. They feel somehow that they must use a 
pronoun. But sometimes the antecedent of a pronoun is not clear. If so, do 
not hesitate to strike the pronoun and use the name of the individual or object. 
Minor stylistic awkwardness is a small price to pay for avoiding major 
misunderstandings. A lapse in stylistic elegance is not as bad as creating the 
impression among your readers that you were completely oblivious to the 
meaning of what you had written. 

After writing and rewriting a decision, a judge frequently becomes so 
familiar with its contents that it is difficult to detect ambiguous passages. It 
always helps to turn it over to a law clerk or an associate for a fresh look. 



Administrative Conference of the U.S. 1 19 



5. Stylistic Quirks 

Avoid stylistic quirks. These small distractions divert the reader's 
attention from what is being said to how it is being said. The reader has 
enough distractions without the writer increasing them by efforts to be verbally 
eccentric or cute. 

a. Elegant Variation^^^ 

Elegant variation is the use of variety for its own sake—changing words and 
structure to hold the reader's attention and to avoid boredom. The following 
is an example: 

The first case was settled for $2,000, and the second piece of 
litigation was disposed of out of court for $3,000, while the 
price of amicable accord reached in the third suit was 
$5,000.3" 

But what has happened? The reader may wonder whether distinctions were 
intended between case, piece of litigation, and suit, and between settled, 
disposed of out of court, and amicable accord. 

There are at least two ways, stylistically, to handle an elegant variation: 
(1) Repeat the same words or phrases. It is better to bore the reader than to 
confuse him. (2) Sometimes it is possible to put the repetitious material in an 
opening clause followed by two or more phrases or clauses that implicitly refer 
to the opening clause. For example, the sample sentence could be reworded as 
follows: 

The first case was settled for $2,000, the second for $3,000, 
and the third for $5,000. 

Although breaking a document, or passage, into lettered or numbered 
divisions may sometimes confuse the reader, this procedure, used carefully, 
can frequently assist the reader. "The complainant has: (1) not filed a response 
to respondent's motion to suppress; (2) ignored repeated admonitions to 
conclude discovery by the agreed-upon date; (3) been late in every filing 
required by the agency's rules. ..." 

b. Litotes 

Some judges use litotes, affirmative statements expressed by denying the 
contrary, either as false courtesy to spare someone's feelings or to express a 



•'^^H. Fowler, A Dictionary OF Modern Usage 148-151 (2d ed. E. Cowers 1965). 
^"Richard C. Wydick, PLAIN ENGLISH FOR Lawyers 57 (Carolina Academic Press 1979). 



120 Manual for Administrative Law Judges 



doubtful finding. Avoid litotes unless they are clearly needed. Use kindly 
rather than nor unkindly, naturally rather than not unnaturally. George Orwell 
recommended inoculation against using litotes by memorizing this sentence: 
"A not unblack dog was chasing a not unsmall rabbit across a not ungreen 
field. "358 

c. Genderless English 

Avoiding the appearance of gender-bias in writing is worthwhile, but 
requires some effort. Moreover, the effort can be overdone, especially if the 
writer resorts to creating new words, like substituting "personhole" for 
"manhole." However, a little good faith effort often can avoid passages like 
"the writer should know that his failure to demonstrate his sensitivity to 
gender-bias can result in his leaving an impression that he is totally ignorant 
about the way language conditions his behavior." Unfortunately, the writer 
may be in a no-win situation. If you use his for any pronoun, you may be 
criticized. His or her frequently sounds awkward, and substituting their may 
obscure the meaning. 

At the very least, be aware of the problem. And certainly, be consistent in 
referring to males and females. If you refer to men by their last names or first 
names do the same with women. Try to omit irrelevant references to physical 
characteristics of either sex. Avoid patronizing and stereotypes. Do not say 
fair sex, weaker sex, or the ladies; say women. If you use Esquire on a 
service sheet, use it for all lawyers regardless of sex. Bias implicit in such 
phrases as a manly effort or a weak sister should be avoided. But don't 
overdo it by neutering everything in sight. 

There are not always clear-cut answers to problems of gender and 
language, but so long as sex is irrelevant the judge should word the decision 
carefully to avoid any sexual bias. 

6. Miscellaneous 

a. Names 

If referring to a person or organization, set out the name in full the first 
time it is mentioned, followed by a word (or, where appropriate, an 
abbreviation or shortened title) in parentheses that identifies the person or 
organization. Thereafter use this term throughout the decision. Thus, do not 
assume that the reader is acquainted with the NLRB or AAA. (In fact, there 
could be several groups with the "AAA" initials.) Write out "National Labor 



^George Orwell, Shooting an Elephant and other Essays 90. 



Administrative Conference of the U.S. 121 



Relations Board (NLRB)" the first time it is mentioned; treat the American 
Automobile Association similarly. If the names of persons or things are 
similar or confusing, the judge should devise short easily distinguishable 
names or descriptions. 

Personal honorific titles such as Doctor, Professor, or General ordinarily 
should not be used if they are irrelevant. A party may infer that the judge is 
assigning some weight to the title. 

b. Technical Terms 

Technical terms are frequently necessary when dealing with many subjects. 
A judge who is familiar with the subject may tend to use complex and 
technical language incomprehensible to many persons interested in the 
decision. The judge should resist this tendency and, if possible, use words and 
expressions comprehensible to a lay reader. If that is impossible, unusual 
words and phrases should be defined. This can be done in a footnote or a 
special section for definitions. Alternatively, the judge may summarize in the 
main text and put the technical details and computations in an appendix. 

c. Attribution 

Excessive or needless attribution wastes a great deal of space, especially in 
judicial writing. As a consequence of realizing that anything in the written 
decision may have legal effect, the judge is tempted to overreact by repeating 
the source of every bit of information. There are several convenient devices for 
avoiding this problem. The judge may only need to state: 

"Mr. X testified as follows:" 

and continue with indirect quotations for a sentence, paragraph, or page 
without repeating the attribution. 

The judge may place a summary of the testimony or statements of each 
witness under separate subheadings such as Green's testimony or Smith's 
statement. 

Provided the result is clear, the judge may attribute the testimony early in 
the passage with no further reference until the last sentence, then say: 

"Mr. Jones concluded his testimony by stating that. ..." 



d. Speech Tags 

These are journalistic expressions such as you said, used to attribute direct 
quotations. Ordinarily, speech tags should not be placed in the middle of a 



122 Manual for Administrative Law Judges 



sentence. Also, a speech tag need not be repeated even for a long quotation. 
Once is usually enough. 

e. Ellipsis 

Ellipsis is the omission of a word or words that the reader will, by 
inference, understand or apply. It is frequently an easy way to avoid needless 
and boring repetition. 

X bank has $9 million in negotiable municipal bonds, Y bank $7 million, 
and Z bank $4 million. 

Ellipsis is also used to shorten quotations by inserting three periods (four if 
the sentence is ended) for the omitted material. 

f. Latin Terms 

Et al., an abbreviation for et alii, is Latin for and others. Etc., an 
abbreviation for et cetera, is Latin for and other things. And etc. is 
redundant. Et al. may be useful in legal instruments to indicate persons whose 
names are not known, or for the names of parties too numerous to mention. 

Sic is Latin for so or thus. It should be used only to ensure the reader that 
what is immediately preceding is correctly quoted when on its face it appears 
doubtful. It should never be used to criticize grammatical errors, or (in place 
of quotation marks) to indicate an ironical use of a word. Sic may be used to 
indicate that a misspelling in quoted material appears in the original. 

7. Being Clever 

Dr. Samuel Johnson reportedly said: "Read over your composition, and 
when you meet with a passage that you think is particularly fine, strike it out. " 
Attempting to shine with cleverness is a good way to look foolish. Once 
more, cleverness is not the first priority of decision-writing. Judges, like all 
writers, on occasion will have an inspiration or perform a brilliant bit of 
stylistic acrobatics on some obscure point, that viewed a few days later no 
longer seems very brilliant. 

The ideal is not demonstrated brilliance. The ideal lies in the opposite 
direction. The ideal is a decision thay takes so little effort to read and 
understand that the reader becomes unaware of the writer. 

8. Rewriting 

The preceding suggestions of how the judge can simplify and clarify the 
written decision should be helpful. Judges may find that a good way to ensure 



Administrative Conference of the U.S. 123 



clarity and sound reasoning is to have an able colleague review, edit, and 
criticize the decision. 

Finally, all judges know that the only way to write any document is to 
assemble the relevant material and the dictionary, thesaurus, stylebook, and 
guide to citations, and to write. Then rewrite, rewrite, and rewrite.'^' 



'''For an excellent book that concentrates on the much-neglected topic of how to revise one's 
writing, see Ede, Work in Progress: A Guide to Writing and Revising (St. Mary's Press, 
1989). 



Appendices 

Appendix I includes a number of forms which illustrate some of the 
devices described in the text. However, these forms are not meant to serve as 
a form book. They merely provide concrete examples of some of the devices 
described in the text (although they were adapted from documents used—at 
some time or other— in cases before various agencies.) Even for those agencies 
whose documents provided the models, each case in actual practice may 
require tailoring and departures from the example. Because they were simply 
examples of the devices described in the text, the forms in Judge Ruhlen's 
1982 edition of the Manual remain valid today. Therefore, many of them were 
retained in this edition, largely unchanged. (Likewise, even though the U.S. 
Court of Federal Claims has changed its rules, Forms 18-a through 18-e, from 
the 1982 edition, remain excellent examples of matters discussed in the text.) 
Other forms in Appendix I have been adapted from orders or documents of 
more recent vintage, or from agencies other than those which were sources for 
the 1982 edition. Again, Appendix I is not a form book. In any event, 
current agency rules and practices would govern the drafting of orders or 
documents in particular cases. 

Appendix II is a short bibliography of some works related to alternative 
dispute resolution. 

Appendix III is a bibliography of trial manuals, style manuals, and works 
on writing. 

Appendix IV is a general bibliography of materials relating to 
administrative adjudication. 

Appendix V is a list of citations to the procedural rules of the various 
agencies which conduct hearings. 

Appendix VI is a copy of the federal Administrative Procedure Act. 



APPE^fDIX I Form 1-a 

(Sample Forms and Orders) 



Order Scheduling Prehearing Conference, With Instructions 

UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 

ORDER PRIOR TO PREHEARING CONFERENCE 

The prehearing conference in this proceeding is scheduled for [datel . 
commencing at 9:00 a.m. 

IT IS ORDERED, that prior to the conference 

(1) The parties shall attempt to achieve a settlement and shall report on 
their efforts at the conference, and 

(2) Counsel are directed to explore the possibility of stipulating to facts 
and procedural matters. 

IT IS FURTHER ORDERED, that at the conference counsel shall be 
prepared to discuss any relevant questions including: 



Pending Motions or Pleadings 

All questions relating to procedures governing the course of this hearing. 
Counsel will disclose any plans to file additional motions or pleadings and the 
relief to be sought. 

Discovery 

Discovery plans, procedures already started, current status, probable 
completion date, and deadlines, subject to the following guidelines: 

(1) Discovery must be initiated no later than [date] 
and 



128 Appendix I - Forms and Orders 



(2) Written interrogatories or depositions upon oral examination may be 
used, but not both in the absence of unusual circumstances. 

Exhibits 

(1) The extent to which direct and rebuttal cases will be submitted in 
writing. 

(2) Dates for exchange of exhibits. 

(3) Preparation and organization of exhibits, including identification and 
numbering. 

(4) The need for copies and the numbering of documents of which official 
notice is requested. 

Witness Notification 

The date or dates on which each party will notify every other party of 
those witnesses it desires to cross-examine and the areas to be covered by such 
cross-examination . 

Hearing Date and Place 

The date and place of the hearing most convenient to the parties. 



[Date] 



Administrative Law Judge 



NOTE: This order is adapted from a Federal Communications Commission 
order. 



Manual for AUs 129 

Form 1-b 

Order Scheduling Prehearing Conference 

UNITED STATES OF AMERICA 

[Agency] 

Washington, D.C. 

[Name of Case] Docket No. 



PRESIDING ADMINISTRATIVE LAW JUDGE'S ORDER 
CONVENING PREHEARING CONFERENCE 

In accordance with the agency's order of [date] , a prehearing 

conference will be held at 10:00 a.m., [date] in a hearing room at 

[place] , Washington, D.C. The parties are to be prepared to present 

discovery requests, to identify all outstanding issues, to stipulate to all factual 
matters not in dispute, and to propose a procedural schedule. 



[Date] 



Administrative Law Judge 



NOTE: This order is adapted from a Federal Energy Regulatory Commission 
order. 



130 Appendix I - Forms and Orders 

Form 1-c 
Letter to Unrepresented Party Confirming Prehearing Conference 

Agency/ALJ Address 
Addressee Address 

Dear : 



This is to confirm my telephone call setting up a prehearing conference. 
As was indicated in our conversation, [I/the Administrative Judge] believe[s] 
such a conference will help expedite your case. He/She has asked me to 
conduct the conference with you. 

The prehearing conference will be held on (Day of Week). (Full Date), at 

(Time) o'clock in Room of Building, (Number and Street. 

City. State) . 

You should bring to the conference (and) any additional evidence 

you wish to submit. 

The time of this Conference has been set aside especially for you. If you 
are not able to attend at the scheduled time or if you decide that you do not 
wish to attend the conference, please call me at once at (telephone number) . 

The purpose of this conference is (1) to clarify the factual data and issues in 
your case (and)/. (2) to determine if additional evidence is needed (./and 
} . The conference will be informal and no testimony will be taken. Therefore 
you do not need to bring any witnesses with you. 

If you have obtained, or are planning to obtain, an attorney or other 
individual to represent you in your (claim)/case please advise me at once. 

Sincerely yours, 



NOTE: This is adapted from a Social Security Administration letter. 



M ANU AL FOR ALJS 1 3 1 

Form 1-d 
Letter to Representative Confirming Prehearing Conference 

Agency /AU Address 
Addressee Address 



Dear 



This is to confirm my telephone call setting up a prehearing conference in 

the case of . As was indicated in our conversation, [I/the Administrative 

Judge] believe[s] such a conference will help expedite your client's case, [The 
Administrative Law Judge has asked me to conduct the conference with you.l 

The prehearing conference will be held on (Day of Week). (Full Date), at 

(Time) o'clock in Room of Building, (Number and Street. 

City. State) . 

You should bring to the conference (and) any additional 

evidence you wish to submit. 

The time of this Conference has been set aside especially for you. If you 
are not able to attend at the scheduled time or if you decide that you do not 
wish to attend the conference, please call me at once at (telephone number) . 

The purpose of this conference is (1) to clarify the factual data and issues in 
your case (and)/ (2) to determine if additional evidence is needed (./and 

} . The conference will be informal and no testimony will be taken. Therefore 
you do not need to bring any witnesses with you. 

You may wish to have your client accompany you to the conference. 

Sincerely yours. 



cc: claimant or others 

NOTE: This is adapted from a Social Security Administration letter. 



132 Appendix I - Forms and Orders 



Appearance Sheet Form 2 

UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 



PLEASE PRINT OR 

WRITE CLEARLY Date 

APPEARANCE SHEET 
1 . Applicant Prospective Applicant 



2. Person upon whom service is to be made (one person): 
Full Name 



Firm Name 


Telephone: 


Address 


ZIP 


Representing 





3. Persons in addition to (2) above whose appearances are to be noted: 

Full Name Telephone: 

Address ZIP 

Full Name Telephone: 

Address ZIP 



4. Number of copies of exhibits, pleadings, and other communications to be 
sent to the person in (2) above: copies 

5. Persons, in addition to (2) above, to whom exhibits, pleadings, and other 
communications are to be sent. In deference to each other and to minimize 
expenses, please limit requests to copies actually needed. A mailing list will 
be attached to the prehearing conference report. 

Full Name Copies 

Address ZIP 

Full Name Copies 

Address ZIP 

Full Name Copies 

Address ZIP 



NOTE: This appearance sheet is adapted from standard forms used at the 
former Civil Aeronautics Board and at the Federal Communications 
Commission. 



Manual for ALJs 133 



GROUND RULES Form 3 

UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 



GROUND RULES 

L Evidence. All evidence, including the testimony of witnesses, shall be 
prepared in written exhibit form and shall be served at dates designated by the 
Administrative Law Judge in advance of the hearing. Evidence as to events 
occurring after the exhibit exchange dates shall be presented by revision of 
exhibits. 

Unless sponsorship is waived, witnesses cognizant of the exhibits shall be 
made available for cross-examination. Such witnesses shall have available at 
the hearing the work papers used in preparing their exhibits. Witnesses will 
not be permitted to read prepared testimony into the record. 

The evidentiary record shall be limited to factual material. Argument will 
not be received in evidence but rather should be presented in the briefs. 

2. Exhibits Generally. Information responses, exhibits, and written 
testimony shall be exchanged on prescribed dates prior to the hearing. Two 
copies shall be served upon the Administrative Law Judge and copies shall be 
sent to the parties in accordance with the attached mailing list. One of the 
Administrative Law Judge's copies is to be tabbed. 

The exhibits shall include appropriate footnotes or narrative explaining the 
source of the information used and the methods employed in statistical 
compilations and estimates. Rebuttal exhibits shall refer specifically to the 
exhibits being rebutted. 

Each party shall submit, prior to the hearing, lists of (a) its exhibits, 
appropriately indexed as to number and title, and (b) the witnesses sponsoring 
particular exihibits. 

Where one part of a multi-page exhibit is based upon another part, 
appropriate cross-reference shall be made. For example, a profit-and-loss 
forecast based on detailed estimates appearing on other pages should contain 
specific references showing which pages support the different individual items 
of the forecast. Such exhibits shall be arranged in an organized manner in 
accordance with the party's theory of the case. 

3. Title of Exhibits. The principal title of each exhibit should state 
precisely what it contains and may also contain a statement of the purpose for 
which the exhibit is offered. However, such statements will not be considered 
as part of the evidentiary record. 



134 Appendix I - Forms and Orders 



4, Authenticity of Documents. The authenticity of all documents submitted 
as proposed exhibits in advance of the hearing shall be deemed admitted unless 
written objection is filed prior to the hearing, except that a party will be 
permitted to challenge such authenticity at a later time upon a clear showing of 
good cause for failure to have filed such written objection. For example, 
absent objection, if an exhibit purporting to be a copy of a letter mailed on a 
certain date were submitted, it would not be necessary to prove such mailing 
or the accuracy of the copy. 



HEARING 

5. Statement of Position. Counsel for each party shall submit a statement 
of position before he presents his direct case. It shall include his theory of the 
case and such other material as directed by the Judge. This statement shall not 
be subject to cross-examination and shall not be received in evidence. 

6. Order of Presentation and Cross-Exami nation. The order of 
presentation will be as follows, alphabetically within each category: 

(1) Civic Parties 

(2) Applicants 

(3) Industry Intervenors 

(4) Labor Parties 

(5) Governmental Agencies 

(6) Other Parties and Other Interested Persons 

(7) Agency Staff 

Each party shall develop the hearing record on direct examination in logical 
order, and rebuttal shall be presented at the same time as the direct case. The 
order of cross-examination will be the same as for presenting direct cases 
unless the Judge deems some other order more appropriate. 

7. Requirement for Submission of Corrected Copies of Exhibits. Each 
party shall present at the hearing three fully corrected sets of its exhibits 
received in evidence. The original is to be presented to the reporter, and 
ultimately will be transmitted to the agency for inclusion in the original 
docket. TTie other two copies are to be presented to the Administrative Law 
Judge, one for his use and the other for inclusion in the duplicate docket 
maintained by the agency. 

8. Cross-Examination. Cross-examination, except by agency staff, shall 
be limited to the scope of the direct examination and to witnesses whose 
testimony is adverse to the party desiring to cross-examine. This is intended 
specifically to prohibit so-called "friendly cross-examination." 



Manual for AUs 135 



Second rounds of cross-examination normally will not be permitted. 
Cross-examination of any particular witness shall be limited to one attorney for 
each party. 

9. Motions. Oral presentation on any motion or objection shall be limited 
to the party or parties making the motion or objection and the party or parties 
against whom the motion or objection is directed. Such presentations shall 
also be limited to one attorney for each party. 

10. Official Notice and Stipulation. Parties using stipulated or officially 
noticed material shall refer to it by specific pages. 

11. Receipt of Evidence Without Sponsoring Witnesses. Any party who 
believes he has evidence of a noncontroversial nature that is appropriate for 
receipt in evidence without the necessity of a sponsoring witness may present 
with his exhibit exchange time (1) an affidavit, by the persons who prepared 
the exhibits, to the effect that they were prepared by the witness or under his 
direction and are true and correct, and (2) a request that the exhibits be 
received in evidence without a witness at the hearing. 

Any party who desires to cross-examine and therefore objects to such a 
request shall advise the requesting party in writing, with copy to the 
Administrative Law Judge, at least 10 calendar days prior to the hearing (5 
calendar days in the case of rebuttal exhibits), specifying the witness or 
witnesses he intends to cross-examine. If no objections are received, the 
exhibit will be received without a witness at the hearing, subject, of course, to 
the right of objection on other grounds. 

12. These rules are deemed consistent with the orderly conduct of this 
proceeding. Exceptions to any rule may be made by the Administrative Law 
Judge for good cause shown. 



[Date] 



Administrative Law Judge 



NOTE: These rules are adapted from the standard rules used at the former 
Civil Aeronautics Board. 



136 Appendix I - Forms and Orders 



Form 4-a 
Prehearing Conference Report 

UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 101 

PREHEARING CONFERENCE REPORT 

Pursuant to notice a prehearing conference was held on fdatel and 

the following appearances were entered: 

[Names of counsel and parties represented] 

Issues. The agency on fdatel directed that this proceeding, which 

involves the question of whether A company or John Smith has acquired 
control of B Company and whether such control should be approved, be set for 
hearing on an expedited basis. 

On [date] A Company, B Company, and C Company filed an 

application requesting approval of the acquisition of control of B Company by 
A Company from C Company. This application was assigned Docket No. 
102. 

At the prehearing conference the Administrative Law Judge ruled that he 
would recommend that docket Nos. 101 and 102 be consolidated, and the 
conference was held on that basis. 

Requests for Information. Several parties requested that specified 
information be submitted by one or more of the other parties. The parties 
agreed to circulate the material described in Appendix I. 

Material to be Stipulated. A proposed stipulation listing material of 
general availability was circulated. A copy of that document will be attached 
only to the docket copy of this report, but not to any other copies since the 
proposed stipulation was distributed to counsel at the conference. Additional 
copies of the stipulation, if needed, may be obtained from agency staff. 

It was agreed that the parties will be allowed until the date fixed for the 
submission of exhibits-in-chief to object to any item on the list or to suggest 
additional items. Otherwise the material will be considered to have been 
admitted by stipulation. 

Written Testimony. Each party shall submit written or explanatory 
testimony with reference to its own exhibits at the time these exhibits are 
submitted. Rebuttal or surrebuttal testimony shall be submitted at the time 
fixed for submitting that type of exhibit. 



Manual FOR AUs 137 



Ground Rules. A proposed set of "ground rules" to be followed during 
subsequent stages of the proceeding was circulated. After some minor 
adjustments the Administrative Law Judge adopted the ground rules attached as 
Appendix 2. 

Dates for Subsequent Procedural Steps: 

Exhibits in Chief 

Rebuttal Exhibits 

Tentative Hearing Date 



[Date] 



Administrative Law Judge 



NOTE: This report is adapted from a former Civil Aeronautics Board report. 
The attachments are omitted. 



138 Appendix I - Forms and Orders 



Form 4-b 
Prehearing Conference Report 



UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 

Issued: [date] Released: fdatel 

Pursuant to agreement reached at a prehearing conference held this date, IT 

IS ORDERED that the following schedule shall govern the initial course of 

this proceeding: 

fdatel -Exchange of exhibits in regard to 

Issue 1 plus a list of any witnesses 
who will testify orally, including 
an indication of the nature of their 
proposed testimony. 

fdatel -Notification of witnesses desired 

for cross-examination. 

fdatel -Commencement of hearing re 

Issue 1. 
At the conclusion of this phase of the proceeding, dates will be set for the 
hearing in regard to the comparative issue and whatever additional issues might 
by then have been added as a result of the pending petitions to enlarge issues. 



Administrative Law Judge 



NOTE: This report is adapted from an order of the Federal Conmiunications 
Commission. 



Manual for AUs 139 



Form 4-c 
Final Prehearing Conference Order 

FINAL PREHEARING ORDER 

Case Caption 
A final prehearing conference was held in this matter, pursuant to Rule 

of the Commission's Rules of Practice for Adjudicative Proceedings ( CFR 

), on the day of , 19~, at — o'clock,— m. 

Counsel appeared as follows: 

For the Complainant: 

For the Respondent(s): 

Others: 

1. Nature of Action and Jurisdiction. This is an action for 

and the jurisdiction of the Commission is invoked under United States Code, 

Title , Section- and under the Code of Federal Regulations, 

Title , Section . The jurisdiction of the Commission is (not) 

disputed. The question of jurisdiction was decided as follows: 



2. Stipulations and Statements. The following stipulation(s) and statement(s) 
were submitted, attached to, and made a part of this order: 

(a) A comprehensive written stipulation or statement of all uncontested 
facts; 

(b) A concise summary of the ultimate facts as claimed by each party. 
(Set forth the claimed facts, specifically; for example, if a violation is 
claimed. Counsel must assert specifically the acts of violation complained 
of; Counsel for each respondent must reply with equal clarity and detail.) 

(c) Written stipulation(s) or statement(s) setting forth the qualifications 
of the expert witnesses to be called by each party; 



140 Appendix I - Forms and Orders 



(d) Written list(s) of the witnesses whom each party will call, written 
list(s) of the additional witnesses whom each party may call, and a 
statement of the subject matter on which each witness will testify; 

(e) An agreed statement of the contested issues of fact and of law, or 
separate statements by each party of any contested issues of fact and law 
not agreed to; 

(f) A list of all depositions to be read into evidence and statements of any 
objections thereto; 

(g) A list and brief description of any charts, graphs, models, schematic 
diagrams, and similar objects that will be used in opening statements or 
closing arguments but will not be offered in evidence. If any other such 
objects are to be used by any party, those objects will be submitted to 
opposing counsel at least 3 days prior to the hearing. If there is then any 
objection to their use, the dispute will be submitted to the Presiding 
Officer at least 1 day prior to the hearing; 

(h) Written waivers of claims or defenses which have been abandoned by 
the parties. 



The foregoing were modified at the pretrial conference as follows: 
(To be completed at the conference itself If none, recite "none".) 
3. Complainant's Evidence. 

3.1 The following exhibits were offered by Complainant, received in 
evidence, and marked as follows: 

(Identification number and brief description of each exhibit.) 

The authenticity of these exhibits has been stipulated. 

3.2 The following exhibits were offered by complainant, and 
respondent(s) (and party interveners) the right to object to their receipt in 
evidence on the grounds stated: 

(Identification number and brief description of each exhibit. State briefly 
ground of objection, e.g., competency, relevancy, materiality) 



Manual FOR AUs 141 



4. Respondent's Evidence. 

4.1 The following exhibits were offered by the respondent(s), received 
in evidence, and marked as herein indicated: 

(Identification number and brief description of each exhibit.) 

The authenticity of these exhibits has been stipulated. 

4.2 The following exhibits were offered by the respondent(s) and marked 
for identification. There was reserved to complainant (and party 
intervenors) the right to object to their receipt in evidence on the grounds 
stated: 

(Identification number and brief description of each exhibit. State briefly 
ground of objection, e.g., competency, relevancy, materiality) 

5. Party Intervenor's Evidence. 

5.1 The following exhibits were offered by the party intervenor(s), 
received in evidence, and marked as herein indicated: 

(Identification number and brief description of each exhibit.) 

The authenticity of these exhibits has been stipulated. 

5.2 The following exhibits were offered by the party intervenor(s) and 
marked for identification. There was reserved to complainant and 
respondent(s) the right to object to their receipt in evidence on the 
grounds stated: 

(Identification number and brief description of each exhibit. State briefly 
ground of objection, e.g., competency, relevancy, materiality) 

NOTE: If any other exhibits are to be offered by any party, such exhibits will 
be submitted to opposing counsel at least ten (10) days prior to hearing, and a 
supplemental note of evidence filed into this record. 

6. Additional Actions. The following additional action(s) were taken: 



142 Appendix I - Forms and Orders 



(Amendments to pleadings, agreements of the parties, disposition of motions, 
separation of issues of liability and remedy, etc., if necessary) 

7. Limitations and Reservations. 

7.1 Each of the parties has the right to further supplement the list of 
witnesses not later than ten (10) days prior to commencement of the 
hearing by furnishing opposing counsel with the name and address of the 
witness and general subject matter of his/her testimony and by filing a 
supplement to this pretrial order. Thereafter, additional witnesses may be 
added only after application to the Presiding Officer, for good cause 
shown. 

7.2 Rebuttal witnesses not listed in the exhibits to this order may be 
called only if the necessity of their testimony could not reasonably be 
foreseen ten (10) days prior to trial. If it appears to counsel at any time 
before trial that such rebuttal witnesses will be called, notice will 
immediately be given to opposing counsel and the Presiding Officer. 

7.3 TTie probable length of hearing is — days. The hearing will 
commence on the — day of , 19—, at—o'clock— m. at . 

7.4 Prehearing briefs will be filed not later than 5:00 p.m. on . 

(Insert date not later than ten (10) days prior to the hearing.) All 
anticipated legal questions, including those relating to the admissibility of 
evidence, must be covered by prehearing briefs. 

This prehearing order has been formulated after a conference at which 
counsel for the respective parties appeared. Reasonable opportunity has been 
afforded counsel for corrections or additions prior to signing. It will control 
the course of the hearing, and it may not be amended except by consent of the 
parties and the Presiding Officer, or by order of the Presiding Officer to 
prevent manifest injustice. 



Presiding Officer 
Dated: 



Approved as to Form and Substance Date: — 



Manual for ALJs 143 

Attorney for Complainant ~ 
Attorney for Respondent(s) ~ 

Attorney for Intervenors — 

NOTE: This order is adapted from Consumer Product Safety Commission, 
suggested form at 16 CFR §1025, Appendix I. 



144 Appendix I - Forms and Orders 



Form 5 
Interlocutory Order 



UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 

ORDER 

Issued: [date] Released: [date] 

Under consideration is a letter dated [date] from counsel for the 

Respondent, requesting that the hearing in this case be postponed to a date 
more convenient for counsel. The letter does not comply with agency rules 
and, apparently, the required filing with the agency's secretary was not made. 
Nevertheless, consideration will be given to the merits of the request. 

The letter arrived in this office on [date] . the day after exhibits and 
witness lists were due and nearly a month after the order scheduling this case 
for hearing. Moreover, the Agency Bureau has now filed and served the 
Respondent with the exhibits for the proceeding. (The Respondent has not 
indicated whether he will present witnesses or exhibits.) To delay fiirther a 
hearing would be a disservice to all parties, and inefficient use of the agency's 
resources, and would not serve the public interest. 

IT IS ORDERED that the request to postpone the hearing BE DENIED. 



Administrative Law Judge 



NOTE: This order is adapted from a Federal Communications Commission 
order. 



Manual for AUs 145 



Form 6-a 
Prehearing Conference Instructions 

UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 



ORDER PRIOR TO PREHEARING CONFERENCE 

Issued: __ldate\__ Released: [date] 

A prehearing conference and a hearing are scheduled to begin at 
[placel . on October 12, 1982, at 10:00 a.m. 

To prepare for the hearing IT IS ORDERED that the parties comply with 
the five following subparagraphs: 

(1) On designated issues (b) and (c), Bureau counsel will prepare and serve 
on the other parties and the Presiding Officer a document that specifies the 

reasons those issues were included in the designation order. See _CFR , 

This document will be served on or before August 24, 1982. 

(2) On designated issues (b) and (c), both the burden of proceeding and the 
burden of proof have been placed on A Company. On or before September 7, 
1982, A Company will serve on all other parties and the Presiding Officer any 
written documents it intends to rely on in support of its direct case, and a list 
of the witnesses (names and addresses) who will testify regarding those two 
issues. 

(3) On issues (a)(1) through (7), each applicant is responsible for 
presenting the required information about its own proposal. 

(4) On issues (a)(2) through (7), each applicant will reduce the essential 
facts to writing and present that material as an exhibit at the hearing. That 
exhibit will be accompanied by the affidavit of the witness or witnesses who 
prepared the material and who may be cross-examined on it. 

(5) All written materials referred to in paragraphs (3) and (4) supra will be 
exchanged with all the other parties and the Presiding Officer on or before 
September 7, 1982. 



Administrative Law Judge 
NOTE: This order is adapted from an FCC order. 



146 Appendix I - Forms and Orders 



Form 6-b 
Prehearing Conference Order/Instructions 
("Simple" case) 

UNITED STATES OF AMERICA 
Agency 

[ADDRESS] 

[Name of Case] Docket No. 



NOTICE OF CONFERENCE AND HEARING 

This case is noticed for conference to be immediately followed by 

hearing. Said conference/hearing to be held on , at . [The 

parties will be notified later as to the exact location of the hearing.] . 

Parties or their representatives are required to be present unless 
previously excused by the undersigned Judge. Failure to appear will be 
considered a cause for dismissal and entry of judgment. 

Prior to the date of the conference, the parties shall confer regarding: 
(1) possible settlement; (2) possible stipulations or admissions; (3) the 
narrowing of issues; (4) defenses; (5) witnesses and exhibits; (6) motions; (7) 
an agreed statement of issues and facts; and (8) any other pertinent matters. 

At the conference, the parties shall be prepared to report on settlement 
efforts and all other matters which will tend to simplify the issues and expedite 
the proceedings. Hearing will proceed immediately upon the conclusion of the 
conference. 

If a settlement has been agreed to, even though not yet executed, and 
the undersigned Judge has been timely advised, it may be unnecessary for the 
parties to attend this conference/hearing. 

[The respondent shall post and/or serve a copy of this notice in 
accordance with Rule of the [Commission's] Rules of Procedure. Failure 



Manual for AUs 147 



of the respondent to do so may be considered as grounds for dismissal of 
respondent's notice of contest.] 

[Employees or their representatives wishing to take part in these 
proceedings as a party may do so by filing notice of their determination to do 
so at least ten (10) days before the date set for hearing. See [§29 CFR 



Administrative Law Judge 
Date: 



NOTE: This notice is adapted from an Occupational Safety and Health 
Review Commission ALJ's notice. 



148 



Appendix I - Forms and Orders 



Prehearing Conference Order/Instructions 
("Simple" case) 



UNITED STATES OF AMERICA 
Agency 



[ADDRESS] 



Form 6-c 



[Name of Case] 



Docket No. 



ORDER REQUIRING PARTIES TO MEET 
PURSUANT TO [SIMPLIFIED PROCEEDINGS] 



This matter is before the undersigned for simplified proceedings 
pursuant to CFR § 



It is hereby ORDERED: 



That the parties meet and confer within twenty (20) days 
after receipt of this Order. 

The following matters shall be discussed: 

1. Settlement of the case. 

2. Narrowing the issues. 

3. Agreed statement of the issues and facts. 

4. Defenses. 



Manual for AUs 149 



5. Witnesses and exhibits. 

6. Motions. 

7. Any other pertinent matter(s). 

It is further ORDERED that within twenty-five (25) days of receipt of this 
order, the parties shall report the results of their discussions to the undersigned 
Judge. Upon receipt of this report, unless the case is settled, the undersigned 
shall schedule and preside over a conference/hearing at an early date. 



Administrative Law Judge 
Date: . 

Copies to: 



NOTE: This order is adapted from an Occupational Safety and Health Review 
Commission AU's order. 



150 Appendix I - Forms and Orders 



Form 7 
Order Granting Permission to Appeal 
Interlocutory Ruling 



UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 

ORDER GRANTING PERMISSION 
TO FILE APPEAL FROM INTERLOCUTORY RULING 



SERVICE: [List of names and addresses of all parties and 

counsel] 

On [date] agency staff submitted a request for (1) 

reconsideration or, in the alternative, (2) permission to file an appeal from an 
interlocutory ruling, dated . 

In view of the extraordinary circumstances involved, I consent to the 
appeal of my ruling on agency staff's motion to dismiss, in accordance with 

Section of the agency's Rules of Practice, CFR . An agency ruling 

at this point on the question of the application of res judicata in cases where 
the passage of time is a factor, as contrasted with a ruling after a full hearing 
in the matter is completed, is in the public interest and is necessary to prevent 
substantial detriment to the public interest and the parties. 

The parties shall have thirty (30) days in which to brief the question 
presented in the appeal to the agency. 



Administrative Law Judge 
[Date] 

NOTE: This form is adapted from a National Transportation Safety Board 
order. 



Manual for AUs 15 1 



Form 8-a 
Administrative Law Judge's Questions 

UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of case] Docket No. 

ADMINISTRATIVE LAW JUDGES' QUESTIONS 



Counsel for the agency and for the respondents are directed to answer 
and present argument on the following questions. Responses shall be in 
writing and served by [datel 

1. What does the legislative history indicate were all the reasons for 
adopting the requirement of Presidential approval of the regulations? Give all 
specific references. Was there discussion of a need for uniformity prior to 
f datel when Congressman introduced this proposal? 

2. Section of the Act originally provided that each agency should 

take action to effectuate the provisions of section and that such action may 

be taken by rule or regulation or order of general applicability. This was later 

amended to a direction to effectuate section by issuing rules, regulations, or 

orders of general applicability. Why was this change made? Give all specific 
references. Was this change made after fdatel ? If so, does it affect the 
argument on page 17 of the brief of the agency that there was no suggestion 
that all major issues must be resolved by regulation, and that the agencies (not 
the President) would have a good deal of discretion? 

Counsel for respondents are invited to answer the questions 
previously addressed to the agency by the notice of [date] . 



Administrative Law Judge 
[Date] 

Copies to all parties 

NOTE: These questions are adapted from questions used in a Department of 
Health and Human Services proceeding. 



152 Appendix I - Forms and Orders 



Form 8-b 
Administrative Law Judge's Letter to Expert Witness 



Dear [Dr.] 



This letter is a request for your professional opinion in connection with 

's disability claim, which is now before me for a hearing and 

decision. 

Enclosed is a proposed exhibit, , which summarizes your professional 

qualifications. If necessary, please correct or complete the form to accurately 
reflect your professional qualifications, and return the original to me. The 
copy is for your files. 

Also enclosed are copies of pertinent evidence for your consideration. Based 
on your professional knowledge and the information provided, please furnish 
written answers to the enclosed interrogatories. If additional space is needed, 
you may use the reverse side of the interrogatories or attach additional pages. 
A copy of this letter and the completed interrogatories will be made a part of 
the record of the proceedings in this case. 

Submit your charges for this service in accordance with your Blanket Purchase 

Arrangement with the Department of . Sign the enclosed 

Contractor's Invoice and return it to me, along with the completed 
interrogatories, the evidence, and the other documents, as soon as possible, but 
no later than (date) . For your convenience, I am enclosing a postage- 

paid, self-addressed envelope. 

Sincerely yours. 

Administrative Law Judge 

cc: (claimant or representative) 

NOTE: This form is adapted from a letter used by the Social Security 
Administration. 



Manual for AUs 153 



Form 8-c 
Administrative Law Judge's Interrogatories to Expert 

Individual: 
SSN: 
Claim for: 

1. Please state your full name and address. 

2. Is the attached curriculum vitae a correct summary of your professional 
qualifications? 

3. Are you board-certified in any medical field and, if so, which field? 

4. Are you aware that your responses to these interrogatories are sought from 
you in the role of an impartial (medical) (vocationan (other) expert? 

5. Has there been any prior communication between the Administrative Law 
Judge and yourself regarding the merits of this case? 

6. Have you ever personally examined the claimant? 

7. Have you read the medical data pertaining to the claimant we furnished 
you? 

8. Is there sufficient medical evidence of record to allow you to form an 
opinion of (the claimant's medical status) (other) ? 

If not, what other evidence is required? 

9. Please list the claimant's physical and/or mental impairments resulting from 
anatomical, physiological, or psychological abnormalities which are 
demonstrable by medically acceptable clinical and laboratory diagnostic 
techniques. In addition, please state your opinion as to the severity of each 
impairment, and the exhibits and objective findings which support your 
opinion. 

10. Are there any conflicts in the medical evidence of record which affected 
your opinion and, if so, please state how you resolved them? 

11. Have we furnished you with copies of the pertinent section of the Listing 
of Impairments, Appendix I, Subpart P, Social Security Regulations, No. ? 



154 Appendix I - Forms and Orders 



12. In your opinion, do any of the claimant's impairments, when taken 
individually, meet the requirements of any of the listed impairments? Please 
fully explain this answer. . . . 

13. ... 



20. Do you have any additional comments or information which may assist us 
in reaching a decision? If so, please state. 



NOTE: This form is adapted from a form used by the Social Security 
Administration. 



Manual for ALJs 155 



Form 8-d 
Letter Sending Interrogatories 
to Claimant or Representative 

Dear : 



This refers to Mr. /Mrs. /Ms. /your claim for disability benefits. I have 

determined that it is necessary to obtain fiirther evidence from a/an 
medical /other expert. I proposed to do this by requesting a/an 

medical /other expert to review the file and to answer written 

interrogatories/questions about your claim. 

I am enclosing the interrogatories/questions that I propose to submit to the 
expert. You may: 

_ object to any of the questions; 

_ propose other questions; or 

— object to my obtaining this information by means of 

interrogatories/questions . 

If I revise the interrogatories/questions based on your comments, I will give 
you another opportunity to comment on the revised interrogatories/questions . 
I will also send you a copy of the expert's responses. You may then: 

m. comment on the responses to the interrogatories/questions ; 

m. submit more evidence; or 

_ ask me to submit additional interrogatories/questions to the expert. 

If you object to my sending interrogatories/questions to an expert, you may 
request that I obtain the evidence at a supplemental hearing. 

If I do not receive a response from you within 20 days from the date of this 
letter, I will assume you have no objections and no additional 
interrogatories/questions . 1 will then send the enclosed 

interrogatories/questions to the expert. 

Please contact me if you have any questions on this procedure. 
Sincerely yours, 



Administrative Law Judge 



NOTE: This form is adapted from a letter used by the Social Security 
Administration. 



156 Appendix I - Forms and Orders 



Form 8-e 
Letter Sending Revised Interrogatories to Claimant or 
Representative 



Dear 



In response to your comments of date I have revised the 

interrogatories/questions that I originally proposed to submit to a/an 
medical/other expert. I am enclosing the revised interrogatories/questions . 

If you have any further comments, please send them to me within 10 days from 
the date of this letter. After that time, I will request an expert to respond to 
the interrogatories/questions . 



Sincerely yours, 



Administrative Law Judge 



NOTE: This form is adapted from a letter used by the Social Security 
Administration. 



Manual for ALJs 157 



Form 8-f 
Letter Proffering the Responses to the Interrogatories 
to the Claimant or Representative 



Dear 



This refers to FMr./Mrs./Ms. 'si fvourl claim for disability benefits. I 

have received responses to the finterrogatories/questionsi I submitted to 

, a expert. I have enclosed a copy of those responses and a statement 

of ^ professional qualifications. 

Please review this material carefully. You may: 

• submit a written statement of the facts and law in this case, 
including any comments you wish to make on the expert witness' 
responses; or 

• request that the expert witness answer further 
linterrogatories/questionsl; or 



If you wish to question the expert witness at a [supplemental] hearing, you 
may so request. If you so request, I will schedule a [supplemental] hearing 
and will notify you of the time and location of the hearing. 

If I do not receive a response from you within 20 days from the date of this 
letter, I will conclude that you have no additional [interrogatories/questionsl 
and that you do not wish to submit anything further. Also, I will accept into 
the record as additional evidence the questions to the expert, the expert's 
responses, and the statement of the expert's professional qualifications, and 
issue a decision. 

Sincerely yours. 

Administrative Law Judge 

Enclosures 

[cc: claimant/others] 

NOTE: This form is adapted from a letter used by the Social Security 
Administration. 



158 Appendix I - Forms and Orders 



Form 9 
Intervention Order 

UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 

ORDER GRANTING, DENYING. 
AND DISMISSING PETITIONS TO INTERVENE 

Petitions to intervene were filed before May 10, 1982, by A 
Company, B city, C City, D City Airport commission, and E Association 
International. The hearing commenced May 10, 1982. 

A Company provides service to points at issue herein. As such, 
therefore, it may be affected by any order that may be entered, and its interest 
may not be adequately represented by existing parties. 

Cities B and D now receive service pursuant to route authorizations 
that are at issue herein. Each, therefore, may be affected by any order that 
may be entered and its interest may not be adequately represented by existing 
parties. 

The petitioning labor organization E represents employees of carriers 
whose route authorizations are proposed for modification and/or change 
herein. It, therefore, may be affected by any order that may be entered and its 
interest may not be adequately represented by existing parties. 

No proposal for modifying the air service authorized to C City is 
included among the issues in this proceeding and, consequently, any interest C 
City may have it too remote to justify intervention. 

Pursuant to authority delegated by the agency in its regulations, it is 
found that each petitioner, except C City, has a sufficient economic interest in 
this proceeding to justify its participation as a party. 

By petition filed August 2, 1982, F City seeks to intervene. The 
agency's Rules of Practice require filing of a petition to intervene by a city, 
other public body, or a chamber of commerce not later than the last day prior 
to the beginning of the hearing. This rule provides that a petition that is not 



Manual for AUs 159 



timely filed shall be dismissed unless the petitioner shall clearly show good 
cause for the failure to file on time. 

In support of its contention that there is good cause for failure to file 
the petition until this late date, the petitioner asserts failure to receive notice of 
the pendency of the proceeding. The notice of hearing was published on April 

1, 1982 ( Fed. Reg. ). Moreover, official notice is taken that the 

pendency of this proceeding has also been widely covered in the press, 
including trade and business magazines and publications. 

Pursuant to authority delegated by the agency in its regulations, 

CFR , it is found that the petitioner has not clearly shown good cause for 

failure to file its petition on time. 

ACCORDINGLY, IT IS ORDERED: 

1. That all of the above petitions to intervene, except that of C City 
and F City, are granted. 

2. That the petition of C City to intervene is denied. 

3. That the petition of F City is dismissed. 

Persons entitled to petition the Board for review of this order pursuant 

to the agency's regulations, CFR , may file such petitions within ten 

days after the date of service of this order. 

This order shall be effective and become the action of the agency upon 
expiration of the above period unless before that date a petition for review is 
filed, or the agency gives notice that it will review this order on its own 
motion. 



Administrative Law Judge 

[Date] 

NOTE: This form is adapted from several orders issued by the former Civil 
Aeronautics Board. 



160 Appendix I - Forms and Orders 



Form 10-a 
Notice of Hearing 



UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 



NOTICE OF HEARING 



PLEASE TAKE NOTICE that the hearings in docket Number , 

will commence at 10:00 a.m. on [date] in Room , Federal 

Building, [city and statel . 

For information concerning the issues involved and other details in 
this proceeding, interested persons are referred to the prehearing conference 
report issued on [date] and other documents which are in the docket of 

this proceeding on file in the Docket Section of the Agency. 



Administrative Law Judge 

[Date] 

NOTE: This notice is adapted from a Federal Reserve System notice. 



Manual for ALJs 161 



Form 10-b 
Notice of Hearing 

UNITED STATES OF AMERICA 
Agency 
Address 



Caption 



NOTICE OF HEARING 



A hearing will be held in the above matter on August 29, 1988, at 
9:30 a.m. at/in [full address, including where relevant the name of the 
building (e.g.. New Courthouse Building, city, state). Please report to 
[clerk's office, first floor, for information regarding room number] [other 
purposes]. 

Pursuant to section 9(b) of the Occupational Safety and Health Act 
and section [ ] of the Commission's Rules of Procedure, the respondent is 

hereby required to serve and/or post this Notice of Hearing in order to afford 
affected employees or their representatives an opportunity to participate as 
parties during this proceeding. 

Affected employees/others are entitled to participate in this hearing 
under terms and conditions established by the Occupational Safety and Health 
Review Commission in its Rules of Procedure. 

Notice of intent to participate should be sent to: 

[Full address of administrative law judge/agency/or other addressee, 
as appropriate] 



Administrative Law Judge 

[Date] 

NOTE: This notice is adapted from an Occupational Safety and Health 
Review Commission AU's notice. 



162 Appendix I - Forms and Orders 



Form 11 
Request by Judge for a Person to Appear as a Witness 



UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 



Date 



Re: [Name of Case] 

[Name and Address] Docket No. 

Dear Sir: 

The agency is holding a proceeding involving the reclassification of 
mail. The issue is the possible development of a new system of classification 
based on the technological capabilities that may reasonably be attained in the 
near future. For example, do machines exist that can read and sort mail? 
When are such machines likely to be available? What are the practical and 
financial problems involved in using such machines? 

I request that you, in your capacity as a knowledgeable and concerned 
private citizen, appear and testify on this matter at any agency hearing to be 
held at [place] . Washington, D.C. at 10 a.m., Thursday, [date] 

Rules of this agency prevent your discussing your testimony with me 
outside of the hearing. 



Sincerely, 

Administrative Law Judge 
NOTE: This letter is adapted from a Postal Rate Commission letter. 



Manual for AUs 163 



Form 12 
Presiding Judge's Instructions for Briefing 



UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 



A-B Merger Case Docket No. 

PRESIDING JUDGE'S INSTRUCTIONS FOR BRIEFING 

An examination of the record discloses certain novel or legal 
problems that were not fully covered in the factual record or arguments of the 
parties during the hearing. Consequently, to expedite the decision the 
following specific matters shall be briefed. 

1. Subsidy Eligibility 

Each of the applicants is now receiving subsidy and it is possible, if 
the merger is approved, that the surviving carrier will be entitled to subsidy in 
an amount to be determined by the agency. The applicants request that the 
merger issues should be decided at once and that, if the merger is approved, 
determination of the amount of the subsidy, if any, be deferred for decision in 
another proceeding. The agency, on the other hand, contends that decision on 
the merger should be deferred pending decision on subsidy needs in an 
ancillary rate proceeding. 

The applicants and the agency are requested to include arguments on 
this matter in their brief. 

2. Labor Protective Conditions 

Historically, the agency has in merger cases used the labor protective 
conditions adopted in X Case in 1952 and reaffirmed in Y Case in 
1979. (These conditions are based on those included in the Washington Job 
Agreement of May 21, 1936.) 

The applicants request that the same conditions be imposed if the 
merger is approved. The C Union, in light of changed economic conditions, 



164 Appendix I - Forms and Orders 



requests that the agency reexamine the labor protective conditions and make 
such changes as it finds needed. 

The applicants, the C Union, and the agency are requested to include 
arguments on this matter in their briefs. 

Briefs shall be submitted 10 days after the close of the hearing. Reply 
briefs will not be permitted. 



Administrative Law Judge 
[Date] 



Manual for AUs 165 



Form 13 
Order Correcting Transcript 



UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 

ORDER CORRECTING TRANSCRIPT 

Issued: Released: 

Under consideration are a motion to correct transcript filed by A on 
[Date! and on opposition filed by B on [Date] . 

A's motion requests that references to section 21.505 of the Rules that 
are found on page 167, line 25 and on page 168, line 6 of the transcript be 
changed to section 21.504. Accompanying A's motion is an affidavit of C, 
consulting engineer, indicating that upon reviewing his testimony he 
discovered these typographical errors. 

The references in question appear in the testimony of the witness C, 
and refer to a series of propagation curves actually set forth in section 21.504. 

B's contention that A's motion is an attempt to change C's testimony 
is unsound. It is obvious that the reference to section 21.505 rather than 
section 21.504 is a typographical error. 

In order that the agency may have an accurate record before it, IT IS 
ORDERED that A's motion IS GRANTED and the transcript IS 
CORRECTED as proposed. 



Administrative Law Judge 



NOTE: This order correcting transcript is adapted from an order of the 
Federal Communications Commission. 



166 



Appendix I - Forms and Orders 



Errata Sheet 



Form 14 



[Name of Case] 



UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 



ERRATA SHEET 



Docket No. 



INITIAL DECISION OF THE 
ADMINISTRATIVE LAW JUDGE 
(Issued ) 

1. On page 4, paragraph 2, line 7, change "$74,936" to "$74,936,000". 

2. On page 7, paragraph 2, line 38, change "$21,401" to "$21,401,000". 

3. On page 9, paragraph 2, line 3, between the words "can" and "exceed" 
insert the word "not". 

4. On page 14, second quote, line 12, change "employer" to "employee". 

5. On page 14, last paragraph, line 11, change "yards" to "meters". 

6. On page 16, last paragraph, line 1, change "is dismissed" to "is denied". 



Administrative Law Judge 



[Date] 



NOTE: This errata sheet is adapted from one used by the Federal Energy 
Regulatory Commission. 



Manual for ALJs 167 



Form 15 
Certification of a Record to an Agency 

UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 

PRESIDING ADMINISTRATIVE LAW JUDGE'S 

CERTIFICATION OF THE RECORD 

ACCOMPANYING INITIAL DECISION 

TO THE SECRETARY: 

In accordance with the provisions of Section of the Commission's 

Rules of Practice and Procedure, I hereby certify: 

I. That the following constitutes the record of the hearing in this 
proceeding: 

(1) The official stenographer's report of the hearings held on 
October 5 through 8, 1982, consisting of volumes numbered 1 through 5, 
pages numbered 1 through 715, including errata. 

(2) Exhibits numbered 1 through 16, which are described on 
the various index pages of the official stenographer's report. All exhibits were 
admitted into evidence. 

(3) Items A through G, which are described on the various 
index pages of the official stenographer's report. 

II. That, in accordance with Section of the Rules of Practice and 

Procedure, the attached document, dated , is my Initial Decision in this 

proceeding. 



Presiding Administrative Law Judge 

[Date] 

NOTE: This certification of a record is adapted from one used at the Federal 
Energy Regulatory Commission. 



168 Appendix I - Forms and Orders 



Form 16 
Order Admitting Exhibit into Evidence 

UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 

ORDER ADMITTING EXHIBIT INTO EVIDENCE 

Pursuant to the Judge's request at the hearing, A city has submitted its 
rate contract with X Power Company to the Judge and all parties. This 
contract, dated , is marked A exhibit 1 for purposes of identification. 

It appears that the document is relevant to the issues and is received 
into evidence. 

Any party wishing to object to the admission of this document into 
evidence should submit its objections in writing and hand deliver them to the 

Presiding Judge on or before fdatel If any objections are received, 

the Presiding Judge will reconsider the action taken in this order and issue a 
further order dealing with the objections. 

SO ORDERED. 



Administrative Law Judge 

[Date] 

NOTE: This order is an adaptation of one issued by the Federal Energy 
Regulatory Commission. 



Manual for AUs 



169 



Order Setting Oral Argument 



UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 



Form 17 



[Name of Case] 



Docket No. 



ORDER SETTING ORAL ARGUMENT 



By motion filed 



[date1 



X Company sought an order allowing the 



Company access to certain documents in the files of Agency Staff. Agency 

Staff filed a response in opposition on fdatel X Company seeks oral 

argument on this matter. Oral argument regarding production of the date in 

question will be heard at 10:00 a.m. on fdatel in a hearing room of this 
Agency, 

fplacel Washington, D.C. Other procedural dates will also be set at 



that time. 



Administrative Law Judge 



[Date] 



NOTE: This order is adapted from one used by the Federal Energy 
Regulatory Commission. 



170 Appendix I - Forms and Orders 



Form 18-a 
Inquiry re Further Proceedings 

IN THE UNITED STATES COURT OF FEDERAL CLAIMS 
TRIAL DIVISION 

No. 

(Dated: 



V. 



The United States 



Since issue has now been joined, this inquiry is made to determine 
what steps should henceforth be taken to expedite the disposition of this case. 

If a trial is to be held, normal procedure calls for the issuance of a 
Standard Pretrial Order on Liability under which the parties are required to 
submit to each other (with plaintiff making the first submission) statements 
setting forth the facts which they believe are not in dispute, the issues of fact 
and law as they perceive them to be, the exhibits they propose to introduce 
into evidence, and the witnesses whose testimony they propose to take, 
together with an indication of the issues to which the testimony of each witness 
will relate. 

However, if the parties contemplate the disposition of the case by 
means other than a trial, it may not be necessary to invoke such formal pretrial 
procedures. For instance, if the parties will proceed by a dispositive motion 
(such as a motion for summary judgment), or if they intend to stipulate all of 
the material facts (assuming the case lends itself to such a stipulation), or if 
they propose to dispose of the case by way of a settlement, the issuance of the 
Standard Pretrial Order may be withheld. In some cases, where justified, the 
issuance of the Order may be postponed pending the completion of necessary 
discovery proceedings (see Rule 71(a)). 



M ANU AL FOR AUS 171 



Accordingly, in order that a determination may be made concerning 
the nature, extent and timing of further proceedings, counsel for each of the 
parties is directed to respond to this Inquiry (by letter, with a copy to opposing 

counsel) within days, by advising whether [s]he presently intends (1) to file 

a dispositive motion; (2) to undertake a stipulation of all of the facts 
(experience has indicated that such a stipulation sometimes evolves more 
expeditiously as a result of complying with the Standard Pretrial Order); (3) to 
initiate settlement negotiations; or (4) to engage in such discovery proceedings 
as would, in counsel's opinion, justify the postponement of the Standard 
Pretrial Order until the completion of such proceedings. 

If either counsel intends to pursue one or more of the above courses of 
actions, the response should be accompanied by a request for a deferral of the 
issuance of the Standard Pretrial Order for a stated reasonable time, and upon 
condition that within such time counsel will pursue the indicated courses of 
action. 



Trial Judge 



172 Appendix I - Forms and Orders 



Form 18-b 
Pretrial Instructions 

UNITED STATES COURT OF FEDERAL CLAIMS 
717 Madison Place, N.W. 
Washington, D.C. 20005 

PRETRIAL INSTRUCTIONS 

The accompanying pretrial order is issued with a view to securing just 
and inexpensive determination of litigation, without unnecessary delay; it is 
designed to explore: 

(a) simplification and clarification of the issues; 

(b) the possibility of obtaining stipulations, admissions, 
agreements on documents, understandings on matters already 
of record, or similar agreements which will avoid 
unnecessary proof; 

(c) limitation of the number of expert or other witnesses, and 
avoidance of cumulative evidence, should the case go to trial; 

(d) the possibility of agreement disposing of all or any of the 
issues in the case; and 

(e) such other matters as may aid in the disposition of this 
litigation. 

In following the instructions contained in this order, counsel should 
bear these purposes in mind. Your full cooperation is essential if pretrial 
proceedings are to be effective. Time spent on thorough pretrial not only 
saves an equivalent or greater period of time during the course of the trial for 
the court, counsel, and witnesses, but reduces costs. 

Counsel are therefore asked to approach their respective obligations in 
a genuine and sincere spirit of cooperation, both in the preparation of their 
submissions, and in their assessment of and comment on submissions of 
opposing counsel. Settlement possibilities should be thoroughly and 
conscientiously assessed, without unduly delaying the pretrial procedures. The 
possibility of voluntary disclosure of discoverable information should be 
explored before resort is had to compulsory process. The latter, if required, is 
to be initiated without delay and concluded prior to response to the pretrial 
order. 



Manual for AUs 173 



With the full cooperation of counsel, it should not be necessary to 
impose the sanctions provided by Rule 114(b) for failure or refusal to comply 
with the requirements of the pretrial order. 



Trial Judge 



174 Appendix I - Forms and Orders 



Form 18-c 
Standard Pretrial Order on Liability 

IN THE UNITED STATES COURT OF FEDERAL CLAIMS 
TRIAL DIVISION 

No. 

(Filed: ) 



(Rule 111) 

Plaintiff* 

Standard 
V. ) Pretrial 

Order on 
Liability 

The United States 

Defendant 



IT IS ORDERED as follows: 

1. Plaintiff's Submission. On or before 19 , the 

plaintiff* shall furnish the following to the attorney of record for the defendant 
and to the trial judge: 

(a) A list accurately describing the documents that are relied on and 
are to be offered in evidence. The documents shall be numbered; and 
the list shall be accompanied by a copy of each document referred to 
therein, except that (1) no copy need be supplied to defendant's 
counsel where the plaintiff reasonably believes that the defendant 
already has the original or a copy, and (2) the trial judge need not be 
provided a copy of any exhibit unless its admissibility is put in issue. 

(b) A statement of the material matters of fact as to which it is 
believed that there is no substantial controversy between the parties, 
or which have been agreed to by the parties. The paragraphs of this 
statement shall be numbered. 

(c) A memorandum of contentions of fact and law, which shall 
comply with the following requirements: 



Manual for AUs 175 



(1) The contentions of fact shall consist of a concise 
statement of the ultimate, material facts which the plaintiff 
expects to establish, rather than a general statement of the 
claim or a repetition of the pleadings. 

(2) The contentions of law shall be in the form of 
conclusions of law based on the ultimate facts which the 
plaintiff expects to establish, and, in addition, shall contain a 
brief statement of the points of law and a citation of the 
authorities relied upon in support of each point. 

(d) (1) A list setting forth the name, address, and occupation of 

each of the witnesses whom the plaintiff proposes to call, and 
a succinct statement of the issue or issues to which the 
testimony of each witness will relate. 

(2) The preferred date for the beginning of the trial, and the 
preferred place or places therefor. 

(3) An approximation of the time that will be required for 
the direct examination of the plaintiff's witnesses at each 
place. 

2. Defendant's Response. Within days after receiving the data 

referred to in paragraph 1 of this order, the defendant shall furnish the 
following to the attorney of record for the plaintiff to the trial judge: 

(a) A statement admitting or denying the admissibility of each 
document listed under paragraph 1(a) of this order, together with the 
reasons for any denial of admissibility, and a further statement 
admitting or denying the genuineness of any documents the 
admissibility of which is disputed. 

(b) A statement (arranged in numbered paragraphs) agreeing to, 
denying, revising or otherwise commenting on the factual data 
submitted under paragraph 1(b) of this order. 

(c) A list of the proposed defense exhibits, meeting the requirements 
of paragraph 1(a) of this order. 



176 Appendix I - Forms and Orders 



(d) A statement setting out any further material matters of fact as to 
which the defendant believes that there is no substantial controversy 
between the parties. The paragraphs of this statement shall be 
numbered. 

(e) A memorandum of contentions of fact and law, which shall 
comply with the requirements set forth in paragraph 1(c) of this order. 

(f) A list of the proposed defense witnesses, complying with the 
requirements of paragraph 1(d)(1) of this order. 

(g) A statement indicating the defendant's preferences as to the date 
and location of the trial. 

(h) An estimate of the time likely to be required for the presentation 
of the direct testimony of the defendant's witnesses, and the cross- 
examination of the plaintiff's witnesses, at each preferred location. 

3. Plaintiff's Reply. Within days after receiving the data 

referred to in paragraph 2 of this order, the plaintiff shall furnish the following 
to the attorney of record for the defendant and to the trial judge: 

(a) A statement agreeing to, denying, or otherwise commenting on 
any revised or additional factual data submitted under paragraph 2(b) 
an (d) of this order. 

(b) Such observations in rebuttal as the plaintiff may wish to offer 
respecting the defendant's contentions of fact and law submitted under 
paragraph 2(e) of this order. 

(c) A statement admitting or denying the admissibility of each of the 
documents listed under paragraph 2(c) of this order, together with the 
reasons for any denial of admissibility, and a further statement 
admitting or denying the genuineness of any documents the 
admissibility of which is disputed. 

(d) .An estimate of the time likely to be required for the cross- 
examination of defendant's proposed witness at each preferred 
location. 

4. Form of Compliance. For convenient of reference, submissions in 
compliance with this order shall follow the format of the order by citing the 



Manual for ALJs 177 



numbered paragraph pursuant to which each portion of a particular submission 
has been prepared. 

5. Sanctions. Rule 114(b) provides sanctions for failure or refusal to 
comply with the requirements of this order. 



Trial Judge 



178 Appendix I - Forms and Orders 



Form 18-d 
Standard Pretrial Order on Accounting 

IN THE UNITED STATES COURT OF FEDERAL CLAIMS 

No. 

(Filed ) 



(Rule 111) 
Plaintiff* 



Standard 
Pretrial 
Order on 
Accounting 



The United States 
Defendant 

IT IS ORDERED as follows: 

1. Plaintiff's Statement. On or before ,19 , the plaintiff* shall 

furnish to the attorney of record for the defendant and to the commissioner a 
statement in schedule form showing all the items and figures which the 
plaintiff intends to prove from books of account or other records. Such 
statement shall be prepared in accordance with the requirements set out in the 
following subparagraphs of this paragraph 1 : 

(a) The basic figures, costs, and rates from which any claim is 
computed shall be tabulated in such detail that the statement may be 
admitted in evidence in lieu of producing the books and records from 
which the pertinent data were taken. 

(b) The statement shall include a complete computation of the total 
amount of each claim that is based upon or derived from book of 
account or other records. 

(c) Each separate portion of the statement shall contain a reference 
showing the particular books and records from which it was taken. 

(d) Where the statement includes a claim for overhead, factory 
burden, general expense, or similar items based upon allocations of 



Manual for AUs 179 



entries shown in the books or records, the statement shall itemize such 
indirect expenses for the period involved, and shall show the 
accounting method or principle upon which the allocations were 
made. 

(e) Where a claim includes an item of damages for machinery or 
equipment expense, the statement shall show the type, class, capacity, 
or other identifying description of each major piece of machinery or 
equipment involved, and the book value of each item. If book values 
are not separately shown in the records, or if some basis of value 
other than book value is used, the statement shall show how the value 
was determined. The statement shall contain a complete computation 
of the equipment expenses claimed; and unless the costs incurred or 
the expenses claimed are fully set forth in the books or records, the 
statement shall show the accounting method, principle, or authority 
upon which such computation is based. 

(f) The statement shall be accompanied by: 

(i) a declaration that the books and records, or any part 
thereof, upon which the statement is based (including 
ledgers, journals, payrolls, and the original invoices, 
vouchers, checks, and other records and documents needed 
for a verification of the amount claimed or for a 
determination of the basis upon which the claim is computed) 
will be made available to the defendant for examination; and 

(ii) a notice showing the address where such books and 
records may be examined by the defendant, together with the 
name and address of the bookkeeper or accountant who 
prepared the statement and who will be made available for 
the furnishing of information regarding such books and 
records in connection with the defendant's examination. 

2. Defendant's Response. Within days after receiving the 

plaintiff's statement in accordance with paragraph 1 of this order, the 
defendant shall make an examination of the pertinent books of account and 
other records, and shall fiimish to the attorney of record for the plaintiff and to 
the commissioner a statement showing the results of such examination, or 
waive challenge of the accuracy of the statement submitted by the plaintiff as 
reflecting the contents of such books and records and the accuracy of the 
computations, including allocations, made therefrom. The defendant's 



180 Appendix I - Forms and Orders 



statement shall be prepared in accordance with the requirements set out in the 
following subparagraphs of this paragraph 2: 

(a) If the defendant verifies the items and figures (or any of them) 
contained in the plaintiffs statement, including the plaintiffs 
computations and allocations, the defendant shall so report in its 
statement. Such a report shall not be deemed to be an admission by 
the defendant of anything more than the accuracy of- 

(i) the statement examined as reflecting the contents of the books and 
records, and 

(ii) the allocations and computations based thereon. 

(b) If the defendant's examination fails to verify any of the items, 
figures, allocations, or computations contained in the plaintiffs 
statement as submitted, the defendant shall specify in its statement 
each item, figure, allocation or computation not verified, together 
with such different item, figure, allocation, or computation, if any, 
derived by the defendant from its examination. The defendant shall 
set forth in its statement a complete explanation of each exception, 
and shall specify any alternative methods or theories of accounting 
upon which the exceptions are based. 

(c) The defendant shall be deemed to have waived challenge of the 
accuracy of all items, figures, allocations, and computations contained 
in the plaintiff's statement, as submitted, that are not specified in the 
defendant's statement as the subject of exceptions. 

3. Defendant's Cross-Statement. In a situation where the defendant 
(a) has derived any items, figures, allocations, or computations from its 
examination of the plaintiffs books and records, and (b) intends to offer 
evidence based upon the material so derived in reduction of any portion of the 
amount claimed by the plaintiff, or in support of a counterclaim or offset or 
affirmative defense, or in support of a theory of damages different from that of 
the plaintiff, the defendant shall prepare a cross-statement reflecting such 
items, figures, allocations, or computations. The cross-statement shall be 
prepared in conformity with the requirements set out in subparagraphs (a)-(e) 
of paragraph 1 of this order, and it shall be furnished to the attorney of record 
for the plaintiff and to the commissioner within the period prescribed in 
paragraph 2 of this order. 



Manual for AUs 1 8 1 



4. Counterclaim or Offset Based on Defendant's Records. 

(a) If the defendant has filed, or intends to file, a counterclaim or 
offset based on its own books of account or other records, the 
defendant, within the time prescribed in paragraph 2 of this order, 
shall furnish to the attorney of record for the plaintiff and to the 
commissioner a statement prepared in accordance with the 
requirements set out in paragraph 1 of this order. 

(b) Within days after receiving the statement referred to in 

subparagraph (1) of this paragraph 4, the plaintiff shall make an 
examination of the pertinent books and records of the defendant and 
shall furnish to the attorney of record for the defendant and to the 
commissioner a statement showing the results of such examination, or 
waiver challenge of the accuracy of the defendant's statement as 
reflecting the contents of such books and records and the accuracy of 
the computation, including allocations, made therefrom. The 
provisions of paragraph 2 of this order shall be applicable to the 
plaintiff's statement. 



Commissioner 



182 



Appendix I - Forms and Orders 



Form 18-e 



Standard Order Scheduling Pretrial Conference 

IN THE UNITED STATES COURT OF CLAIMS 
Trial Division 



No. 
Filed 



(Rule 111) 
Plaintiff* 



Standard 

Order 

Scheduling 

Pretrial 

Conference 



The United States 
(Rule 112) Defendant 



IT IS ORDERED as follows: 

1. The attorneys for the parties* are directed to appear before me in 

room , U.S. Court of Claims Building, 717 Madison Place, N.W. 

(Lafayette Square), Washington, D.C., at o'clock on 

19 , for pretrial conference. 

2. The pretrial conference will deal with the following matters: 

(a) incorporating the agreed facts in the record; 

(b) admitting in evidence, or marking for identification, the 
documentary exhibits which the parties wish to offer (such exhibits 
should be numbered prior to the conference); 

(c) defining the legal issues that are involved in the litigation; 

(d) defining the factual issues that are to be tried; 

(e) fixing a time and place for the trial; 



Manual for AUs 1 83 



(f) limiting the number of expert witness and providing for the 
exchange between the parties prior to the trial of written documents, 
in narrative or question-and-answer form, by such witnesses 
comprising their proposed direct testimony; and 

(g) such other matters as may aid in the disposition of the case. 

3. An attorney appearing at the pretrial conference on behalf of a 
party should preferably be the attorney who will try the case for such party, be 
thoroughly familiar with the case, and be authorized to act for his principal. 

4. Unless the attorneys for the parties have furnished to each other, 
in accordance with a previous pretrial order (or otherwise), lists of prospective 
witnesses, lists of proposed documentary exhibits, statements of supposedly 
uncontroverted facts, and statements of their contentions concerning the factual 
and legal issues involved in the case, the attorneys are directed to confer with 
each other before the pretrial conference and to: 

(a) exchange lists containing the names and addresses of all witnesses 
whom they respectively expect to call at the trial, and indicating as to 
each witness the issue or issues of fact to which his testimony will be 
directed (this subparagraph does not apply to witnesses who are to be 
used solely for the purpose of impeachment or rebuttal); 

(b) exchange lists of the documentary exhibits which they 
respectively intend to offer at the trial, each list to be accompanied by 
copies of the exhibits listed unless the originals or copies thereof are 
already in the possession of the opposing party; 

(c) prepare a written statement of the agreed facts; 

(d) attempt to reach agreement on written statements of the factual 
and legal issues that are involved in the case. 



Trial Judge 



184 Appendix I - Forms and Orders 



^ Form 19-a 

Protective Order 

UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 

PROTECTIVE ORDER 

Upon consideration of respondent's motion for a protective order filed 
on [date] with respect to data collected by complaint counsel showing 

payments by to respondent, and complaint counsel's answer, it is hereby 

ordered that: 

All documents submitted by , whether supplied 

voluntarily or pursuant to subpoena duces tecum, containing data showing 

payments by to respondent and any compilations or summaries of 

such data, shall be subject to the following terms and conditions for the 
purpose of protecting the confidentiality of such information (referred to as 
"confidential financial information"): 

(a) Confidential financial information and all documents containing 
confidential financial information shall be disclosed only to the staff 
of the Commission formally assigned to this proceeding and to 
respondent's counsel. 

(b) Disclosure of confidential financial information to any person 
described in Paragraph (a) of this order shall be only for the purpose 
of this proceeding and for no other purpose. 

(c) All such confidential financial information shall be prominently 
marked by complaint counsel as "Confidential-Subject to Protective 
Order," and shall be kept by complaint counsel in secure, segregated 
facilities. Access to those facilities shall be permitted only to persons 
designated in Paragraph (a) of this order. 

(d) No portion of the confidential financial information will be 
copied or recorded in any manner, other than in the work papers, 
notes, or memoranda of person designated in Paragraph (a) of this 



Manual for ALJs 1 85 



order, and all such work papers shall be treated as confidential 
financial information. 

(e) Confidential financial information shall not be disclosed by 
complaint counsel to any other person employed by the Commission 
until such person has executed an affidavit stating that he has read and 
understood this protective order and agrees to be bound by the terms 
thereof. Copies of any such affidavits shall be filed with the Secretary 
and served upon respondent. 

(f) In the event complaint counsel desires that any confidential 
financial information be divulged to any person who is not an 
employee of the Commission, complaint counsel shall make written 
application to the Administrative Law Judge for modification of this 
"protective order and respondent shall be granted ten (10) days after 
receipt of notice to oppose or otherwise answer said application. The 
persons to be granted access to the documents and information will be 
identified in any order granting modification of this protective order. 

(g) In the event complaint counsel desires to introduce into evidence 
by way of documents or testimony any confidential financial 
information subject to this protective order, complaint counsel shall 
provide respondent with ten (10) days prior notice to the intent to 
make such offer so that respondent may seek in camera treatment of 
said confidential financial information. If advance notice cannot be 
provided pursuant to this order, respondent shall be so notified at the 
time of introduction of such documents and the document shall be 
accorded in camera treatment pending a ruling by the Administrative 
Law Judge upon any request by respondent for such treatment, which 
request must be filed within ten (10) days of receipt of such notice. 

(h) In the event this proceeding is resolved by means of a consent 
order or otherwise disposed of prior to an adjudicative hearing on the 
merits, all confidential financial information shall be destroyed 
forthwith. Should this proceeding not be so resolved, at such time 
thereafter (including the completion of any appeals procedures) as this 
proceeding is finally resolved, the original and all copies of work 
papers reflecting confidential information, except that which may 
have been incorporated into the record in this case, shall be destroyed 
forthwith. 



186 Appendix I - Forms and Orders 



(i) Nothing herein shall be construed to prevent the Administrative 
Law Judge or any reviewing authority from disclosing such 
confidential information as may be necessary to reach a decision on 
any matter raised in connection with this litigation. 



Administrative Law Judge 



[Date] 



NOTE: This order is adapted from a Federal Trade Commission protective 
order. 

* For protective orders involving confidential commercial information, 
Executive Order No. 12600 of June 23, 1987 (52 Fed. Reg. 23781), and any 
agency implementing rules should be consulted. 



Manual FOR AUs 187 



Form 19-b 
Protective Order 

UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] Docket No. 

PROTECTIVE ORDER 

having requested the issuance of a protective order with 

regard to [exhibits they propose to offer in their case in defense and [other 
party/parties] having stated no objection to such request] IT IS HEREBY 

ORDERED that: 

(1) All of the documents listed below and the information contained 
therein shall not be disclosed to anyone except the following persons: 
Respondents and their employees; Respondent's counsel of record; experts 
retained by Respondent's counsel for purposes of this litigation; 
[complainant's] counsel of record in this litigation; experts used by 
[complainant's] counsel for purposes of this litigation; a committee or 
subcommittee of Congress, in response to official request; or a court, in 
response to compulsory process. Those persons to whom disclosure is 
permitted under this Order shall not make further disclosure to anyone. 

(2) The documents and information furnished shall be used only in 
cormection with this proceeding. All copies of such documents, together with 
all notes, memoranda, and other papers reflecting the documents and 

information, or any part thereof, shall be returned to ^ counsel at 

the termination of this proceeding. 

(3) In the event [complainant'sl counsel desire to offer into evidence 
any document or information subject to this Protective Order. 

[complainant's] counsel shall provide with no less than 

fifteen (15) days prior notice of their intention to make such offer so that 
may seek in camera treatment of said documents or information pursuant to 
of the 's Rules of Practice . 

(4) In the event the documents or information are officially requested 
by a Committee or subcommittee of Congress, or demanded by compulsory 
process of a court, the court or committee or subcommittee will be advised that 



188 Appendix I - Forms and Orders 



considers the information to be confidential, and will be provided 

with thirty (30) days prior notice where possible, and in any event, as much 
prior notice as can reasonably be given. 

The following [proposed exhibits] are covered by this Protective 

Order 



EX Number Description 



205 Reported 1978 Advertising Expenditures for 
manufacturers 

206 ^ Corporation Statement of Income, 

Years Ended October 31, 1979, 1980. 



IT SHOULD BE UNDERSTOOD THAT THIS PROTECTIVE 
ORDER COVERS THE PREHEARING STAGE OF THIS PROCEEDING 
ONLY, AND IN NO WAY INTIMATES THE JUDGE'S RULINGS WHEN 
AND IF CERTAIN EXHIBITS ARE OFFERED, AND THE 
APPLICABILITY OF §[ ] of the [Commission's] Rules is raised. 

MOREOVER, this protective order is not intended to impede proper 
preparation of this case and if any provision in this order seriously interferes 
with [complainant's] [intervenor's] [other parties' /participants'] preparation, 
relief may be sought. 



NOTE: This order is adapted from a Federal Trade Commission protective 
order. 



Manual FOR AUs 189 



Form 19-c 
Protective Order, Re: Deposition 



UNITED STATES OF AMERICA 

Agency 

Washington, D.C. 

[Name of Case] . Docket No. 

[or other identification] 



[PROTECTIVE ORDER/HEADING] 

Certain documents furnished by deponents pursuant to the subpoenas, 
identified hereinafter by the Exhibit Number which was assigned at the 
depositions, are hereby placed under a protective order. The terms of the 
protective order are set forth herein following the identification of the 
documents which are covered by the order. 

[Sancho Panza] Deposition Exhibits 5, 7, 9, 10, 12, 23, .... 

[Dulcineal Deposition Exhibits 1, 2, 7 ... . 



IT IS ORDERED AS FOLLOWS: 

1. The above identified exhibits shall be maintained in 
confidence by the [LaMancha] [Regional Office] of the [Federal Windmill 
Commission] and be made available only to the following employees of that 
Office: ■ [Attorney Don Quixote. Investigator Quasimodo Jones, Secretary 

Earnest Torquimada], . The foregoing persons shall use the 

identified documents only for purposes of this proceeding and such documents 
shall be made available to other persons within the [Federal Windmill 
Commission] only on written authorization of the assigned Administrative 
Law Judge. 

2. AH copies of the identified documents shall be returned to each 
deponent who produced the identified documents pursuant to subpoena, or to 
counsel for each deponent, at the conclusion of this proceeding. For purposes 
of this protective order, this proceeding shall be deemed concluded when a 



190 Appendix 1 - Forms and Orders 



final order of the [Commissioni shall have been served upon respondents 
herein. 

3. Copies of any identified exhibits offered or received in evidence 
during formal trial of this matter shall not thereafter be subject to the terms of 
this protective order. 



Administrative Law Judge 
[Date] 



NOTE: This order is adapted from a Federal Trade Commission protective 
order. 



Manual for AUs 191 



Form 19-d 
Protective Order 

Stipulated Protective Order 

The Commission Trial Staff ("Staff") and Intervenor, have 

sought to obtain certain documents and information from 
Corporation and certain of its affiliates ("the Companies") in this proceeding. 
The Companies assert that certain of the documents and information requested 
contain confidential and proprietary information. This Stipulated Protective 
Order is a device to facilitate and expedite the handling of this proceeding and 
it merely reflects agreement by counsel for the active participants at this point 
as to the manner in which "PROTECTED MATERIALS," as that term is 
defined in this order, are to be treated. This action is not intended to constitute 
an agreement on the merits concerning confidentiality of any of the 
"PROTECTED MATERIALS," and the parties shall not be deemed by taking 
such action to have waived any arguments with respect to whether the 
"PROTECTED MATERIALS" are confidential or proprietary in nature. 

1. All documents and information furnished subject to the terms of this 
order hereinafter shall be referred to as "PROTECTED MATERIALS." 
However, "PROTECTED MATERIALS" shall not include any information or 
document contained in the public files of the Federal Energy Regulatory 
Commission ("the Commission") or any other federal or state agency. 
"PROTECTED MATERIALS" also shall not include documents or 
information which at, or prior to, disclosure in these proceedings, is or was 
public knowledge, or which becomes public knowledge as a result of 
publication or disclosure by the Companies. 

2. The Companies may designate as "PROTECTED MATERIALS" those 
documents or discovery materials or portions thereof produced by them which 
in good faith they believe contain confidential or proprietary information. 
Designation shall be accomplished by marking the documents or other 
discovery materials or portions thereof with the words "PROTECTED 

MATERIALS, FERC DOCKET NO. ." Any notes, memoranda, 

summaries, abstracts, studies or other information derived from such 
"PROTECTED MATERIALS" or portions thereof, other than a list of the 
"PROTECTED MATERIALS," shall be similarly marked, and reasonable 
precautions shall be taken to ensure that any such notes, memoranda, 
summaries, abstracts, studies or other information are not viewed by any 
persons except those to whom "PROTECTED MATERIALS" may be 

disclosed under paragraph 4. Upon request of the Staff, or , the 

Companies shall state the reason for designating as "PROTECTED 
MATERIALS" documents or discovery materials or portions thereof and shall 



192 Appendix I - Forms and Orders 



provide a sworn affidavit stating that, to their knowledge and belief, the 
"PROTECTED MATERIALS" or portions thereof are not already on file with 
the Commission or any other federal or state agency or otherwise available to 
the public. 

3. Unless and until otherwise agreed or otherwise ordered by the Presiding 
Judge, the Commission, or a court of competent jurisdiction, all documents 
and other discovery materials or portions thereof that have been designated 
"PROTECTED MATERIALS," and any notes, memoranda, summaries, 
abstracts, studies or other information derived therefrom, shall be used only in 
connection with this litigation in accordance with this Stipulated Protective 
Order and may be inspected by or disclosed to only the persons described in 
Paragraph 4 under the conditions herein established. 

4. a. "PROTECTED MATERIALS" may be disclosed to and used by 

attorneys of record for Staff and in this proceeding or in 

any appellate proceeding resulting from this proceeding and persons 
who are regularly employed in such attorneys' offices and engaged in 
or supervising the conduct of this proceeding in accordance with this 
Stipulated Protective Order. 

b. "PROTECTED MATERIALS" also may be disclosed to and used 

by Staff's and technical experts, consultants, expert 

witnesses, other witnesses, and persons regularly employed in their 
respective offices who are involved in this proceeding in accordance 
with this Stipulated Protective Order. The attorney for Staff 

or shall secure and provide to counsel for the Companies a 

certificate from each such person in the form attached hereto stating 
that he or she has read this Stipulated Protective Order, and that he or 
she may not divulge any "PROTECTED MATERIALS," or any 
portion thereof, or any information derived therefrom, except in 
accordance with this Stipulated Protective Order. 

In the event that any person to whom disclosure of "PROTECTED 
MATERIALS" has been made ceases to be engaged in this 
proceeding, access to such materials by such person shall be 
terminated. However, any person who has executed the certificate in 
the form attached hereto shall continue to be bound by the provisions 
of this Stipulated Protective Order even if no longer so engaged. 

c. Any party or participant who receives "PROTECTED 
MATERIALS" pursuant to this Stipulated Protective Order will make 
no more than five copies of each document. Such party or participant 
will keep a log which sets forth the number of copies of each 
document which were made, and will provide a copy of that log to the 
Companies at the termination of this proceeding and any related 
appellate litigation. The parties or participants will negotiate in good 



Manual for AUs 193 



faith concerning the reproduction of additional copies of 
"PROTECTED MATERIALS" for use as exhibits in depositions, in 
testimony or during the hearing. 

5. a. If a reviewing party tenders for filing with the Presiding 
Administrative Law Judge, the Commission or any court, any written 
testimony, exhibit, brief or other submission that includes, 
incorporates, or refers to "PROTECTED MATERIALS," all portions 
thereof referring to such materials shall be marked "PROTECTED 
MATERIALS" and filed and served in sealed envelopes or other 
appropriate containers endorsed to the effect that they are sealed 
pursuant to this Stipulated Protective Order. 

b. Unless objection to disclosure is waived by counsel for the 
Companies, "PROTECTED MATERIALS" or portions thereof may 
be served, offered, or introduced into evidence, or otherwise 
disclosed only in an in camera portion of this proceeding closed to all 
persons except those listed in paragraph 4. 

The Presiding Judge shall determine, subject to such review as may be 
provided by the Commission's regulations and by any applicable law, 
whether or to what extent the "PROTECTED MATERIALS" or 
portions thereof will remain in camera, will be made public, or will 
be stricken or excluded from the record. Pending such determination, 
which shall be subject to such review as may be provided by 
Commission regulations and by any applicable law, any submission 
that is served, offered, or introduced in camera shall be subject to the 
provisions of this Stipulated Protective Order. That portion of the 
hearing transcript relating to in camera proceedings conducted 
pursuant to the Stipulated Protective Order shall be sealed and subject 
to this Stipulated Protective Order, unless otherwise ordered by the 
Presiding Judge. 

6. "PROTECTED MATERIALS" may be disclosed to employees of the 
Conmiission's Assistant General Counsel for General Legal Services and the 
Office of Public Information for purposes of review pursuant to requests filed 
under the Freedom of Information Act, 5 U.S.C. §552(a). Such employees 
shall thoroughly review all "PROTECTED MATERIALS" covered by 
requests filed under the Freedom of Information Act and determine whether 
the exemptions listed in 5 U.S.C. §552(b) apply. Documents covered by any 
such exemption shall not be released. In addition, such employees shall not 
authorize the release of such "PROTECTED MATERIALS" to any other 
person without first providing the Companies notice in writing at least 5 
working days prior to such release of the intention to release such 
"PROTECTED MATERIALS." In the event of such notice, the Companies 
shall have the right to apply to the Commission for a determination that the 



194 Appendix I - Forms and Orders 



"PROTECTED MATERIALS" come within the exceptions listed in 5 U.S. C. 
§552(b) and should not be released or to take such other action as they deem 
appropriate. 

7. a. In the event that Staff or intervenors wish to disclose 
"PROTECTED MATERIALS" to any person to whom disclosure is 
not authorized by this Stipulated Protective Order, or wish to object 
to the designation of certain information or material as 
"PROTECTED MATERIALS," Staff or intervenors will first notify 
in writing counsel for the Companies and the Presiding Judge, 
identifying with particularity each of such "PROTECTED 
MATERIALS" and state the reason for the intended disclosure or 
objection. Staff, intervenors and the Companies will then undertake 
good faith negotiations in order to resolve any disputes as to such 
disclosures or the validity of the claim to protection. 

Where these negotiations produce agreement, such agreement will be 
filed with the Presiding Judge, and other reviewing parties may make 
use of these materials, provided that they enter into similar 
agreements with the Companies. 

b. If the Staff, intervenors and the Companies fail to reach agreement 
with respect to the disclosure reference in paragraph 7a, or the 
Companies otherwise maintain that the information should continue to 
be classified as "PROTECTED MATERIALS," the Companies shall 
notify in writing the Staff and intervenors of their position within 5 
days of the notice in paragraph 7a. The Staff or intervenors shall then 
file, within 10 days of such notice, a motion requesting that the 
Presiding Judge review the documents in camera and determine 
whether they should be protected from disclosure. The Companies 
shall file a response to such motion within 10 days after the motion is 
filed. This Stipulated Protective Order does not change the burden of 
proof under applicable law in determining whether designated 
documents or information or portions thereof are entitled to be so 
protected. 

8. In the event that the Presiding Judge at any time in the course of this 
proceeding finds sua sponte or in response to a motion that all or part of the 
"PROTECTED MATERIALS" are not confidential or proprietary, those 
materials shall nevertheless be subject to the protection afforded by this order 
for 10 working days, unless otherwise ordered, from the date of issuance of 
the Judge's decision. Neither the Companies, Staff or intervenors waive their 
rights to seek additional administrative or judicial remedies after the Presiding 
Judge's decision. 

9. Nothing in the foregoing provisions of this Stipulated Protective Order 
shall be deemed to preclude any person from seeking and obtaining, on an 



Manual for AUs 195 



appropriate showing, such additional protection or relief as may be available 
under applicable law. 

10. All "PROTECTED MATERIALS" in the possession of Staff or 
intervenors and all copies made thereof shall be returned to the Companies at 
the termination of this proceeding and any related appellate litigation, except 
to the extent that Staff, intervenors and the Companies shall agree otherwise. 
In addition, at the termination of this proceeding and any related appellate 
litigation, the Staff and intervenors shall destroy any notes, memoranda, and 
other documents and information derived from "PROTECTED 
MATERIALS," other than lists of such "PROTECTED MATERIALS," and 
certify in writing to counsel for the Companies that such destruction has been 
accomplished. Staff and intervenors shall have no obligation to return any 
material which was originally designated as "PROTECTED MATERIALS" 
under this Stipulated Protective Order but as to which a final order, no longer 
subject to review, has been issued which concludes that the material in 
question is not confidential or proprietary. 

11. Nothing in this Stipulated Protective Order shall be construed to 
prevent the parties from attempting to obtain through discovery in any other 
judicial or administrative action or proceeding all or any of the "PROTECTED 
MATERIALS" returned to the Company pursuant to paragraph 10, above. 

12. In the event that a document is supplied by the Companies which the 
Companies inadvertently failed to mark as "PROTECTED MATERIALS," 

upon request, FERC and shall mark any such document as 

"PROTECTED MATERIALS" and the document and all copies thereof shall 
be subject to the provisions of this Stipulated Protective Order. 



NOTE: This is adapted from an opinion/protective order issued by an ALJ of 
the Federal Energy Regulatory Commission. {See, 32 FERC P63,091; 1985 
FERC LEXIS 1377 (1985). 



196 



Appendix I - Forms and Orders 



Form 20 



Judge's Docket Sheet 

AGENCY 

JUDGE'S DOCKET SHEET 

Judge 

Case Name fCaptionl 



Item 

Number Date 

J-1 3/12/89 



Entry 

Notice of Assignment 



J-2 


J-6 


4/7/89 


Complainant's motion to Vacate Order Granting 
Simplified Proceedings 


J-7 


4/11/89 


Order Vacating Order Granting Simplified 
Proceedings 


J-8 


4/15/89 


Motion for Continuance 


J-9 


4/19/89 


Order Rescheduling Hearing 


J-10 


4/19/89 


Letter from Judge stating that no further 
continuances should be requested. 


J-11 


5/14 


Complainant's Requests for Admission 


J-12 



NOTE: This was adapted from the Judge's Docket Sheet used by the 
Occupational Safety and Health Review Commission. 



Manual for AUs 197 



Form 21 -a 
Notice of Judge's Decision 

NOTICE OF DECISION 

In Reference To: 

Caption of case 

Docket No. 

Enclosed is a copy of my decision. It will be submitted to the 
[Commission's Executive Secretary] on date The decision will become 

the final order of the fCommissionI at the expiration of thirty (30) days from 
the date of docketing by the [Executive Secretary] . unless within that time 
[a Member of the Commissioni directs that it be reviewed. All parties will 
be notified of the date of docketing. 

Any party adversely affected or aggrieved by the decision may file a 
petition for discretionary review. A petition may be filed with this Judge within 
twenty (20) days from the date of this notice. Thereafier, any petition must be 
filed with the [Commission 'si [Executive Secretary'/ within twetity (20) days 
from the date of the Executive Secretary's notice of docketing. The [Executive 
Secretary's address is as follows: 

[Executive Secretary] 

[Washington, DC 20006-1246] 

The full text of the rule governing the filing of a petition for 
discretionary review is [29 CFR §2200.91 . It is appended hereto for easy 
reference. The rule also prescribes requirements concerning: (a) any cross- 
petition for discretionary review; (b) the contents of a petition; (c) the effect of 
a failure to file a petition; (d) statements in opposition to a petition, and (e) the 
number of copies of any document that may be filed. There are closely related 

rules which are published in 29 CFR §2200.90 and . Rule 90 

concerns the contents of a decision of this kind; the aforementioned docketing 
of this Judge's report by the Executive Secretary; and the correction of errors 

and relief from default. Rule describes review by the [Commission] —its 

jurisdiction and the standards that are applied concerning issues that are raised 
by the parties or otherwise may exist. The text of these rules is also appended. 



198 Appendix I - Forms and Orders 



Administrative Law Judge, OSHRC 



NOTE: Adapted from Notice used by the Occupational Safety and Health 
Review Commission. 



Manual for AUs 199 



Formll-b 
Notice of Judge's Decision 
(Unfavorable decision, court remand case) 



Notice of Administrative Law Judge Decision—Denial 

PLEASE READ CAREFULLY 

Name of Claimant 
Street Address 
City, State 



Enclosed is the Administrative Law Judge's decision on your claim. This 
notice gives you information about what you can do if you disagree with the 
decision. Please read this notice and the decision carefully. 

If You Disagree With This Decision: 

If you disagree with this decision, you may appeal to the Appeals Council. 
You must do this by filing written Exceptions. Exceptions are your statements 
explaining why you disagree with the decision of the Administrative Law 
Judge. 

mm Mail the written statement of your exceptions to the Appeals 
Council, Office of Hearings and Appeals .... 

m. You must file your written exceptions within 30 days from the date 
you receive this notice. The Appeals Council assumes that you receive this 
notice within 5 days after the date at the end of this notice unless you show 
that you did not receive it within the 5-day period. 

_ If you need more time to file your written exceptions, you must 
file a written request for additional time with the Appeals Council within 30 
days of the date you receive this notice. If you request more than a 30-day 
extension of time, you must explain why you need the extra time. 

_ Please include the Social Security Number(s) shown on the 
decision on any paper you send to the Appeals Council. 



200 Appendix I - Forms and Orders 



_ The Appeals Council will consider your exceptions and the parts of 
the decision that you disagree with. The Appeals Council may also consider 
those parts which you do not disagree with. 

i_ If the Appeals Council concludes that further action is necessary, 
it will either return your case to an Administrative Law Judge, for further 
action or issue a decision. If the Appeals Council issues a decision, that 
decision may be either more or less favorable to you than the decision of the 
Administrative Law Judge. 

— If the Appeals Council concludes that there is no reason to change 
the Administrative Law Judge's decision, it will notify you in writing why 
your exceptions do not warrant a change. 

. If you submit written exceptions and the Appeals Council does not 
change the decision of the Administrative Law Judge, that decision becomes 
the final decision of the Secretary after remand. 

_ Any future claims you may file will not change a final decision on 
this claim if the facts and issues are the same. 



If You Do Not File Written Exceptions: 

Even if you do not file written exceptions within 60 days from the date shown 
below, the Appeals Council may review your case on its own motion. The 
Appeals Council will notify you if it decides to review your case and will 
advise you what action it proposes to take. 

If the Appeals Council does not review your case on its own motion and you 
do not submit exceptions, we will forward a copy of the decision and transcript 
of the record in your case to the United States Attorney, for filing with the 
court. 

You have the right to pursue your civil action with the court. 

New Application: 

You have the right to file a new application at any time, but filing a new 
application is not the same as filing exceptions to this decision. You might 
lose benefits if you file a new application instead of filing written exceptions to 



Manual for AUs 201 



this decision. Therefore, if you disagree with this decision, you should file 
your exceptions within 30 days. 



If you have any questions, please contact 



This Notice and enclosed copy of 
decision mailed . 



cc: Name & Address of Representative 
cc: [as applicable] 



NOTE: This form is adapted from a notice used by the Social Security 
Administration. 



202 Appendix I - Forms and Orders 



Form 22 
Order Appointing Settlement Judge 



UNITED STATES OF AMERICA 
Agency 

[Name of Case] Docket No. 



ORDER 

1. There being no objection, the Secretary 

of/complainant's/respondent's motion for the appointment of a 

settlement judge pursuant to [29 CFR j$2200.1011 is hereby granted. [Because 
there has been no objection, there is an implied consent for the use of the 

settlement judge procedure. 1 

. It is therefore determined that there is a reasonable prospect of settlement of 
at least a substantial portion of this case with the assistance of mediation by a 
settlement judge. 

2. The case is hereby assigned to Administrative Law Judge 

, who will serve as the settlement judge, pursuant to applicable rules and 

regulations. Judge ^ service as settlement judge in this case and 

related negotiations will be for a period not to exceed 45 days, unless such 
period is extended pursuant to applicable rules and regulations. 



Chief Administrative Law Judge 

[Date] 

NOTE: This is adapted from an Order issued by the Chief Administrative 
Law Judge of the Occupational Safety and Health Review Commission. 



Manual for AUs 203 

Form 23 

Order re: Filing of Electronic Word Processing Files in Complex Case 

UNITED STATES OF AMERICA 
Agency 

[Name of Case] Docket No. 

ORDER 

A review of the complaint in this case indicates a likelihood that this 
case could become factually and legally complex. Therefore, in order to 
address the issues more readily, the parties are directed to provide the Judge, 
for each document greater than two (2) pages in length, an electronic copy of 
the document on a MS/Dos 5 '4 or other suitable floppy diskette in 
WordPerfect 5.0 format, or in a format capable of being converted by 
WordPerfect 5.0 . Diskettes need not be furnished for complaint and answer . 

The diskette(s) shall be transmitted to the in an envelope or 

mailer, designed for that purpose, at the time of filing the printed document. 
Receipt of the diskette does not constitute filing or affect the time of the filing 
of the document (hard copy). 

IT IS SO ORDERED. 



Administrative Law Judge 
[Date] 

NOTE: This form is adapted from an order used by a judge of the United 
States Court of Federal Claims. 



APPENDIX n 



SELECTED BIBLIOGRAPHY; 
ALTERNATIVE DISPUTE RESOLUTION 

Administrative Conference of the United States (Milhauser & Pou, 
eds.). Sourcebook, Federal Agency Use of Alternative Means of Dispute 
Resolution. Washington, DC: 1987. 

American Bar Association, Standing Committee on Dispute 
Resolution. Alternative Dispute Resolution: An ADR Primer, 3rd ed. 
Washington, DC: ABA Standing Committee on Dispute Resolution, 1989. 

CPR Legal Program. CPR Practice Guide: Confidentiality in ADR. 
New York: Center for Public Resources, 1989. 

Crowell, Eldon H. and Charles Pou, Jr. Appealing Government 
Contract Decisions: Reducing the Cost and Delay of Procurement Litigation 
with Alternative Dispute Resolution Techniques, 1987 ACUS 1139, reprinted 
/■/i Maryland Law Review 49, No. 1: 183-254. 

Fine, Erika S., and Elizabeth S. Plapinger, eds. for the CPR Legal 
Program. Containing Legal Costs: ADR Strategies for Corporations, Law 
Firms, and Government. Butterworth Legal Publishers, 1988. 

Fisher, Roger, and William Ury. Getting to YES: Negotiation 
Agreement without Giving In. New York: Penguin Books, 1981. 

Goldberg, Stephen B., Eric Green, and Frank E.A. Sander. Dispute 
Resolution. Boston: Little, Brown and Company, 1985. 

Harter, Phillip J. Neither Cop Nor Colleaion Agency: Encouraging 
Administrative Settlements by Ensuring Mediator Confidentiality, Report to the 
Administrative Conference 1988 ACUS 839. 

Harter, Phillip J. Points on a Continuum: Dispute Resolution 
Procedures and the Administrative Process, Report to the Adminstrative 
Conference 1986 ACUS 165. reprinted in 1 Admin. L. J. 141 (1987). 



206 Appendix II - ADR Bibliography 



Hinchcliff, Carole L. Dispute Resolution: A Selected Bibliography, 
1987-88. Washington, DC: American Bar Association, Standing Committee 
on Dispute Resolution. 

Joseph, Daniel & Michelle L. Gilbert. Breaking the Settlement Ice: 
The Use of Settlement Judges in Administrative Proceedings, Report to the 
Adminstrative Conference 1988 ACUS 281, reprinted in 3 ADMIN. L. J. 571 
(1990). 

Mullins, Morell E. The Use of Settlement Judges and Simplified 
Proceedings before the Occupational Safety and Health Review Commission, 
Report to the Adminstrative Conference 1990 ACUS 495, reprinted with some 
revisions in, 5 Admin. L. J. 555 (1991). 

Patterson, Roger. Dispute Resolution in a World of Alternatives, 
Catholic University L. R. 37, no. 3 (Spring 1988): 591-604. 

Ray, Larry. Emerging Options in Dispute Resolution. ABA 
Journal 75 (June 1989): 66-68. 



APPENDIX III 



SELECTED BIBLIOGRAPHY: 

TRIAL MANUALS, STYLE MANUALS, AND WORKS ON WRITING 

G. Basham, Hearing Examiners Manual, Federal Maritime 
Commission (1968). 

G. Block, Effective Legal Writing (4th ed. 1992). 

Bureau of Administrative Law Judges, Civil Aeronautics Board, 
Judge's Manual (1975) and Form Book for Judge's Manual (1975). 

Committee on Information and Education, Administrative Conference 
of the United States, Recommended Procedures for Protracted Hearings before 
Administrative Agencies (2d draft, 1963). 

Department of Health and Human Services, Social Security 
Administration, Hearings, Appeals, Litigation atid Law (LEX) Manual 
(HALLEX) (1990). 

A. Dworsky, The Little Book on Legal Writing (1990). 

L. Ede, Work in Progress: A Guide to Writing and Revising (1989). 

B. Gamer, The Elements of Legal Style (1991). 

G. Gopen, Writing from a Legal Perspective (1981). 

M. Maron, Guidelines for Formal Contested Administrative 
Proceedings: A Handbook for Members of State Occupational Licensing Board 
(California Office of Administrative Hearings, Department of General 
Services). 

L. Naftalison, Manual for Hearing Officers in Administrative 
Adjudication in the State of New York (Rev. Manual No. 16, 1972). 



208 Appendix III - Style Guides 



National Association of State Directors of Special Education, Due 
Process in Special Education—A Step-by-Siep Resource Manual for Hearing 
Officers (1978). 

National Labor Relations Board, Manual: Divisions of Judges 
(1984). 

M. Ray & J. Ramsfield, Legal Writing: Getting It Right and Getting 
It Written (1987). 

R. Smith, The Literate Lawyer il9S6). 

L. Squires & M. Rombauer, Legal Writing in a Nutshell (1982). 

Strunk & White, The Elements of Style (3d ed. 1979). 

Virginia Board of Commerce, Agency Rules of Practice for Hearing 
Officers (1977) (published by the Virginia Department of Commerce, 
Richmond, Virginia). 

C. Wagner, Office of Administrative Law Judges, Federal Energy 
Regulatory Commission, Policy and Procedures Manual (1980) [revised 1987] 

K. Woolever, Untangling the Law (1987). 

R. Wydick, Plain English for Lawyers (2d ed. 1985). 



APPENDIX IV 



BIBLIOGRAPHY: 

MATERIALS RELATED TO ADMINISTRATIVE ADJUDICATION 



Books 



Bernstein, Marver H., REGULATING Business by Independent 

Commission. Princeton University Press, Princeton, NJ, 

1955. 
Burger, Paula, JUDGES IN Search of a Court: 

Characteristics, Functions and Perceptions of 

Federal Administrative Law Judges. University 

Microfilms International, Ann Arbor, MI, 1984. (Ph.D. 

dissertation, Johns Hopkins University, 1984.) 
Chamberlain, Joseph, Dowling, Noel, and Hays, Paul, The 

Judicial Function in Federal Administrative Agencies, 

The Commonwealth Fund, 1942; reprinted by Books for 

Libraries Press, Freeport, NY, 1970. 
Cofer, Donna, JUDGES, Bureaucrats and the Question of 

Independence: A Study of the Social Security 

Administration Hearing Process, Greenwood Press, 

Westport, CT, 1985. 
Dixon, Robert C, Jr., Social Security Disability and Mass 

Justice: A Problem in Welfare Administration. Praeger 

Publishers, New York, NY, 1973. 
Mashaw, Jerry L., Bureaucratic Justice: Managing Social 

Security Disability Claims. New Haven: Yale University 

Press, New Haven, CT, 1983. 
Mashaw, Jerry L., et. al.. Social Security Hearings and 

Appeals, Lexington Books, Lexington, MA, 1978. 
Miller, Edward, AN Administrative Appraisal of the 

NLRB, University of Pennsylvania, The Wharton School, 

Industrial Research Unit, Labor Relations and Public Policy 

Series No. 16, 1977. 
Musolf, Lloyd D., Federal Examiners and the Conflict of 

Law and Administration. The Johns Hopkins University 

Studies in Historical and Political Science, Series LXX, 



210 Appendix IV - Adjudication Bibliography 



Number 1, The Johns Hopkins Press, 1953; reprinted by 
Greenwood Press, Inc., Westport, CT, 1979. 
Rich, Malcolm C, and Brucar, Wayne E., THE CENTRAL 
Panel System for Administrative Law Judges: A 
Survey of Seven States. American Judicature Society; 
University Publications of America, Inc., Frederick, MD, 
1983. 



Articles 



Abrams, Norman, Administrative Law Judge Systems: The 

California View, 20 ADMIN. L. REV. 487 (1977). 
Allen, William, Administrative Actions, Paper delivered to 

[unidentified] Institute (November, 1981). [Mr. Allen is a 

partner at Covington and Burling, Washington, D.C.] 
Ames, H.C., TTie Hearing Examiner and the Riss Decision, 18 

ICCPrac. J. 729(1951). 
Asimow, Michael, When the Curtain Falls: Separation of 

Functions in the Federal Administrative Agencies, 81 COLUM. 

L. Rev. 759 (1981). 
Auerbach, Carl A., Scope of Authority of Federal Administrative 

Agencies to Delegate Decision-Making to Hearing Examiners, 

48 Minn. L. Rev. 823 (1964). 
Benkin, Isaac D., The Shadow World of Administrative Law 

Judges, 22 Judges J. 20 (Fall 1983). 
Berg, Richard, Re-examining Policy Procedures: The Choice 

Between Rulemaking and Adjudication, 38 ADMIN. L. Rev. 

149 (1986). 
Bloomfield, David S., Disability Claims Under the Social 

Security Act: A Practitioner's Guide to Administrative 

Procedures, 6 Cap. U.L. Rev. 371 (1977). 
Bok, Derek C, A Flawed System, Howard Magazine, May- 
June 1983, p. 38. 
Boyd, Robert K., A Hearing Examiner Comments on the APA 

and the Rule-Making or Adjudication Controversy, 11 Wm. & 

MaryL. Rev. 424(1969). 
Caldwell, Louis C, A Federal Administrative Court, 84 U. Pa. 

L. Rev. 970(1936). 
Caldwell, Louis G., The Proposed Federal Administrative 

Court: The Arguments for Its Adoption, 36 A.B.A. J. 13 

(1950). 



Manual for AUs 211 



Gary, William L., Why I Oppose the Divorce of the Judicial 

Function from Federal Regulatory Agencies, 51 A.B.A. J. 33 

(1965). 
Cass, Ronald, Allocation of Authority Within Bureaucracies: 

Empirical Evidence and Normative Analysis, 66 B.U. L. REV. 

1 (1986). 
Champagne, Anthony and Danube, Amos, An Empirical 

Analysis of Decisions of Administrative Law Judges in the 

Social Security Disability Programs, 64 Geo. L. J. 43 (1975). 
Cleary, Timothy F., Some Aspeas of Agency Review of Initial 

Decisions of Administrative Law Judges, 31 Lab. L. J. 531 

(1980). 
Comment, Social Security Hearings for the Disabled—Who 

Decides: Trial Examiners or Administrative Law Judges'} 69 

Nw. U.L. Rev. 915 (1975). 
Comment, Administrative Law Judges and the Code of Judicial 

Conduct: A Need for Regulated Ethics, 94 DICKINSON L. Rev. 

929 (1990). 
Cramton, Roger C, A Title Change for Federal Hearing 

Examiners? 'A Rose by Any Other Name. . . ', 40 GEO. 

Wash. L. Rev. 918(1972). 
Cross, Hugh W., Statement to the President's Conference on 

Administrative Procedure Concerning Appointment and Status 

of Federal Hearing Officers, 22 ICC Prac. J. 120 (1954). 
Davis, Frederick, Judicialization of Administrative Law: The 

Trial-Type Hearing and the Changing Status of the Hearing 

Officer, 1977 DUKE L. J. 389. 
De Seife, Rudolphe J. A., A Proposal for the Estabishment of an 

Administrative Court System, Washington Legal Foundation, 

Critical Legal Issues: Working Paper Series No. 16 

(July 1987). 
De Seife, Rudolphe J. A., Administrative Law Reform: A Focus 

on the Administrative Law Judge, 13 Val. U. L. Rev. 229 

(1979). 
Dixon, Robert G. Jr., 77?^ Welfare State and Mass Justice: A 

Warning from the Social Security Disability Program, 1972 

DukeL. J. 681. 
Dullea, Charles J., Development of the Personnel Program for 

Administrative Law Judges, 25 ADMIN. L. Rev. 41 (1973). 
Edles, Gary, The ICC Hearing Process: A Cost-Benefit 

Approach to Administrative Agency Alternative Dispute 

Resolution, 16 Trans. L. J. 99 (1987). 



212 Appendix IV - Adjudication Bibliography 



Etelson, Jesse, The New AU Examination: A Bright, Shining 

Lie Redux, 43 ADMIN. L. Rev. 185 (1991). 
Fallon, Richard, Enforcing Aviation Safety Regulations: The 

Case for a Split -Enforcement Model of Agency Adjudication, 4 

ADMIN. L. J. 389 (1991). 
Fallon, Richard, Of Legislative Courts, Administrative Agencies 

and Article III, 101 Harv. L. Rev. 915 (1988). 
Fauver, William, An Agenda for Investigation: Should the APA 

Be Amended to Provide Standards for Agency Review of 

Administrative Trials'? 1973 DUKE L. J. 135. 
Federal Trial Examiners Seek to Enjoin Civil Service 

Commission Regulations, 19 ICC Prac. J. 369 (1952). 
Freedman, James O., Review Boards in the Administrative 

Process, 117 U. Pa. L. Rev. 546 (1969). 
Friendly, Henry J., Some Kind of Hearing, 123 U. Pa. L. Rev. 

1267 (1975). 
Frye, John, Study of No n-AU Hearing Programs, 44 Admin. L. 

Rev. 261 (1992) 
Fuchs, Ralph F., The Hearing Examiner Fiasco Under The 

Administrative Procedure Act, 63 Harv. L. Rev. 737 (1950). 
Fuchs, Ralph F., Hearing Commissioners, 30 N.Y.U. L. Rev. 

1342(1955). 
Fuchs, Ralph F., 77?^ Hearing Officer Problem—Sympton and 

Symbol, 40 Cornell L. Q. 281 (1955). 
Gardner, Warner, The Procedures by Which Informal Action is 

Taken, 24 Admin. L. Rev. 155 (1972). 
Gifford, Daniel, Adjudication in Independent Tribunals: The 

Role of an Alternative Agency Structure, 66 Notre Dame L. 

Rev. 965(1991). 
Gladstone, Arthur A., Commentary: The Adjudication Process 

in Administrative Law, 31 ADMIN. L. Rev. 237 (1979). 
Graham, Michael, Application of the Rules of Evidence in 

Administrative Agency Formal Adversarial Adjudications: A 

New Approach, 1991 U. III. L. Rev. 353 (1991). 
Hantman, Jack H., For an Administrative Court, 62 A.B.A. J. 

360 (1976). 
Harves, Duane, 77?^ J98I Model State Administrative Procedure 

Act: The Impact on Central Panel States, 6 W. New Eng. L. 

Rev. 661 (1984). 
Harwood, Gerald, How Necessary is the Administrative Law 

Judge? 6 W. New Eng. L. Rev. 793 (1984). 



Manual for AUs 213 



Hayes, Social Security Disability and the Administrative Law 

Judges, 17 A.F. L. Rev. 73 (1975). 
Hayes, Hearing Examiner Regulations Promulgated Under 

Section 11 of the Administrative Procedure Act, 18 ICC Prac. 

J. 189(1951). 
Hayes, Hearing Examiner St at us— A Recurrent Problem in 

Administrative Law, 1954 IND. L. J. 86 (1954). 
Hector, Louis J., Problems of the CAB afid the Independent 

Regulatory Commission, 69 Yale L. J. 931 (1960). 
Hector, Louis J., The Hidden Judiciary and What It Does, U.S. 

News & World Report, Nov. 1, 1982. 
Heifetz, Alan W., AUs, ADR. an ADP: The Future of 

Administrative Adjudication, 1 Widener J. OF PUB. L. 13 

(1992) 
Heifetz, Alan W. and Heinz, Thomas C, Separating the 

Objective, Subjective, and the Speculative: Assessing 

Compensatory Damages in Fair Housing Adjudications, 26 J. 

Marshall L. Rev. 3 (1992). 
Holmes, John C, AU Update: A Review of the Current Role, 

Status and Demographics of the Corps of Administrative Law 

Judges, 38 Fed. Bar News &. J. 202 (May 1991). 
Home, Brockman, Committee on Hearing Officers Asks for 

Help, 37 J. OF THE Am. Judicature Soc, 182 (1954). 
Improving the Administrative Process—Time for a New APA? 

Proceedings of the National Conference on Federal Regulation: 

Roads to Reform, 32 Admin. L. Rev. 357 (1980). 
Judging the Judges - An Outsize Job - and Getting Bigger, TIME, 

August 20, 1979, p. 49. 
Joost, Robert and Battaglia, Nancy, The Board for Correction of 

Military Records of the Coast Guard: A Unique Dispute 

Resolution Mechanism, 41 ADMIN. L. J. 441 (1989). 
Katcher, Monroe I., New York's Elusive Administrative Law 

Judge, 54 N.Y. St. B. J. 80 (1982). 
Kauper, Karen, Protecting the Independence of Administrative 

Law Judges: A Model Administrative Law Judge Corps 

Statute, 18 J. OF Law Reform 537 (1985). 
Kinnane, Charles H., Administrative Law: Federal Trial 

Examiners and the Ramspeck Case, 4 De Paul L. Rev. 1 

(1954). 
Klement, Alice, 'Hidden Judiciary' Fights Back, Nat. L. J., 

September 24, 1979, p. 18. 



214 Appendix IV - adjudication Bibliography 



Koch, Jr., Charles H. and Koplow, David A., The Fourth Bite 

at the Apple: A Study of the Operation and Utility of the 

Social Security Administration's Appeals Council, 17 Fla. St. 

L. Rev. 199 (1990). 
Levant, Michael, A Unified Corps of Administrative Law Judges 

— The Transition From a Concept to an Eventual Reality, 6 W. 

NewEng. L. Rev. 705 (1984). 
Levinson, Harold, Elements of the Administrative Process: 

Formal, Semi-Formal and Free-Form Models, 26 AM. U. L. 

REV. 872 (1977). 
Levinson, Harold, Professional Responsibility Issues in 

Administrative Adjudication, 2 B.Y.U. J. OF PUB. Law 219 

(1988). 
Levinson, Harold, 77?^ Proposed Administrative Law Judge 

Corps: An Incomplete But Important Reform Effort, 19 New 

Eng. L. Rev. 733 (1983-84). 
Liebman, Ernst., Quality Control for Administrative Law 

Judges, 18 Judges J. 15 (1979). 
Lindh, Frank, An Examination of the Proposed "Closed Record" 

Administrative Law Judge Hearing in the Social Security 

Disability Program, 6 W. NewEng. L. Rev. 745 (1984). 
Litt, Nahum and Simone, Joseph, An Administrative Law Judge 

Corps: Its Value and Relation to the Traditional Justice 

System, 11 Whittier L. Rev. 569 (1989). 
Lorch, Robert S., The Administrative Court Idea Before 

Congress, 20 W. PoL. Q. 65 (1967). 
Lorch, Robert S., Administrative Court via the Independent 

Hearing Office, 51 JUDICATURE 114 (1967). 
Lorch, Robert S., Federal Administrative Court Idea, 52 A.B.A. 

J. 635 (1966). 
Lubbers, Jeffrey S., A Unified Corps of AUs: A Proposal to 

Test the Idea at the Federal Level, 68 JUDICATURE 266 (1981). 
Lubbers, Jeffrey S., Federal Administrative Law Judges: A 

Focus on Our Invisible Judiciary, 31 ADMIN. L. Rev. 109 

(1981). 
Lubbers, Jeffrey S., Federal Agency Adjudications: Trying to 

See the Forest and the Trees, 33 FED. Bar News AND J. 388 

(1984). 
Lubbers, Jeffrey S., Management of Federal Agency 

Adjudication, Paper presented at Symposium, American 

University School of Public Affairs, May 16, 1991. 



Manual for AUs 215 



Lussier, Edward, 77?^ Role of the Article I "Trial Judge", 6 W. 

NewEng. L. Rev. 775 (1984). 
Macy, John W., Jr., The APA and the Hearing Examiner- 
Products of a Viable Political Society, 27 Fed. Bar J. 351 

(1967). 
Mans, Thomas C, Selecting the 'Hidden Judiciary': How the 

Merit Process Works in Choosing Administrative Law Judges, 

(2 Parts), 63 Judicature 60, 130 (1979). 
Marquardt, Ronald G. and Wheat, Edward M., Case Processing 

by Administrative Agencies: Administrative Law Judge 

Perceptions vs. Reality, Paper presented to Western Political 

Science Ass'n Convention (March 26, 1982). 
Marquardt, Ronald G. and Wheat, Edward M., The Developing 

Concept of an Administrative Court, 33 Admin. L. J. 301 

(1981). 
Marquardt, Ronald G. and Wheat, Edward M., Hidden 

Allocators: Administrative Law Judges and Regulatory 

Reform, 2 L. & POL'Y Q. 472 (1980). 
Martin, Reforming Asylum Adjudication: On Navigating the 

Coast of Bohemia, 138 U. Pa. L. Rev. 1247 (1990). 
Marzloff, George Ernest, Delay in Review of Initial Decisions: 

The Case for Giving More Finality to the Findings of Fact of 

the Administrative Law Judge, 35 Wash. & Lee L. Rev. 393 

(1978). 
Miller, C.A., Federal Trial Examiners Should Not Be Subjea to 

Presidential Appointment; Address, 21 ICC Prac. J. 4 (1953). 
Miller, Edward B., 77?^ Tangled Path to an Administrative 

Judgeship, 25 Lab. L. J. 3 (1974). 
Miller, John T., Jr., Tlie Civil Service Commission's New 

Hearing Examiner Recruittnent Program, 17 ADMIN. L. REV. 

104 (1964). 
Miller, John T., Jr., Continuing Forum for Reform of 

Administrative Process, 27 ADMIN. L. Rev. 205 (1975). 
Miller, John T., Jr., The Education and Development of 

Administrative Law Judges, 25 ADMIN. L. Rev. 7 (1973). 
Miller, John T., Jr., Hearing Cases Before Several Agencies- 
Odyssey of an Administrative Judge—Comment, 27 ADMIN. L. 

Rev. 218(1975). 
Miller, John T., Jr., The Need for Improvements in the Hearing 

Examiner Recruitment Program for the Civil Service 

Commission, 19 ADMIN. L. Rev. 319 (1967). 



216 Appendix IV - Adjudication Bibliography 



Miller, John T., Jr., The Vice of Selective Certification in the 

Appointment of Hearing Examiners, 20 ADMIN. L. Rev, 477 

(1968). 
Minor, Robert W., 77?^ Administrative Court— Hear It Comes 

Again, 24 ICC Prac. J. 807 (1957). 
Minor, Robert W., 77?^ Administrative Court: Variations on a 

Theme, 19 Ohio St. L. J. 380 (1983). 
Minow, Newton N., Suggestions for Improvements in the 

Administrative Process, 15 ADMIN. L. Rev. 146 (1963). 
Mogel, William A., The Effect of a Claim of Privilege upon the 

Subpoena Power of an Administrative Law Judge, 28 DRAKE 

L. Rev. 67 (1978-79). 
Morse, Marvin, The Administrative Law Judge—A New 

Direction For the Corps'? 30 FED. Bar News & J. 398 (1983). 
Mosher, Lawrence, Here Come the Administrative Law Judges, 

Nat. L. J., July 28, 1979, p. 1247. 
Moss, Debra C, Judges Under Fire, 11 A.B.A. J. 56 

(November 1991). 
Musolf, Lloyd D., Independent Hearing Officers: The 

California Experiment, 14 W. POL. Q. 195 (1961). 
Nathanson, Nathaniel L., The Administrative Court Proposal, 57 

Va. L. Rev. 996 (1971). 
Nathanson, Nathaniel L., Proposals for an Administrative 

Appellate Court, 25 ADMIN. L. Rev. 85 (1973). 
Neslund, Nancy, Dispute Resolution: A Matrix of Mechanisms, 

1990 J. OF Dispute Resolution 212 (1990). 
Note, Administrative Law Judges. Performance Evaluation, and 

Production Standards: Judicial Independence Versus 

Employee Accountability, 54 GEO. Wash. L. Rev. 591 

(1986). 
Note, Veterans' Preference in Public Employment: The History, 

Constitutionality and Effect on Federal Personnel Practices of 

Veterans' Preference Legislation, 44 GEO. Wash. L. Rev. 

623 (1976). 
Palmer, Victor, The Evolving Role of Administrative Law 

Judges, 19 NewEng. L. Rev. 755 (1983-84). 
Palmer, Victor, and Bernstein, Edwin, Establishing Federal 

Administrative Law Judges as an Independent Corps: The 

Heflin Bill, 6 W. New Eng. L. Rev. 673 (1984). 
Pfeiffer, Paul N., Hearing Cases Before Several Agencies- 
Odyssey of an Administrative Law Judge, 27 ADMIN. L. Rev. 

217 (1975). 



Manual for AUs 217 



Pops, Gerald M., Judicialization of Federal Administrative Law 

Judges: Implications for Policymaking, 81 W. Va. L. Rev. 

169 (1979). 
Reflections on the Conduct of an Administrative Hearing, Panel 

Discussion, 20 ADMIN. L. Rev. 101 (1967). 
Rhyne, Charles S., Developing the Prestige of the Hearing 

Examiner, 41 A.B.A. J. 184 (1961). 
Rich, Malcolm C, ed.. The Central Panel System: A New 

Framework for the Use of Administrative Law Judges, 65 

Judicature 232 (1981). 
Rich, Malcolm C, The Central Panel System and the 

Decisionmaking Independence of Administrative Law Judges: 

Lessons for a Proposed Federal Program, 6 W. New Eng. L. 

Rev. 643 (1984). 
Robie, William and Morse, Marvin, The Federal Executive 

Branch Adjudicator: Alive (and) Well Outside the 

Administrative Procedure Actl 33 Fed. Bar News & J. 133 

(March 1986). 
Rogers, James T., Trial Examiners' Impact on Business Grows, 

21 ICCPrac. J. 187(1953). 
Rosenblum, Victor, Changing Judicial Perceptions of 

Administrative Decision-Making and of the Status of 

Administrative Law Judges; Interrelations of Case Law with 

Statutory and Pragmatic Factors in Determining AU Roles, 15 

Judges J. 64(1976). 
Rosenblum, Victor, Contexts and Contents of "For Good 

Cause" as Criterion for Removal of Administrative Law 

Judges: Legal and Policy Factors, 6 W. New Eng. L. Rev. 

593 (1984). 
Rutledge, J.C., Administrative Trial Examiners: The 

Anonymous Matters, 30 Wash. L. Rev. 26 (1955). 
Sahm, Henry S., 77?^ Hearing Examiner's Roles in the Federal 

Administrative Process, 20 FED. Bar J. 74 (1960). 
Scalia, Antonin, The AU Fiasco—A Reprise, 47 U. Cm. L. 

Rev. 57 (1979). 
Scalia, Antonin, The Hearing Examiner Loan Program, 1971 

DukeL. J. 319. 
Schapiro, Mary, Remarks Before the Twenty-Third Annual Rocky 

Mountain State-Federal-Provincial Securities Conference, 

Denver, Colorado, (October 12, 1990). [Ms. Schapiro is an 

SEC Commissioner.] 



218 Appendix IV - adjudication Bibliography 



Segal, Bernard G., The Administrative Law Judge: Thirty Years 

of Progress and the Road Ahead, 62 A.B.A. J. 1424 (1976). 
Sharon, Amiel T., The Measure of an Administrative Law 

Judge, 19 Judges J. 20 (1980). 
Sharon, Amiel and Pettibone, Craig, Merit Selection of Federal 

Administrative Law Judges, 70 JUDICATURE 216 (1987). 
Simeone, Joseph J., The Function, Flexibility, and Future of 

United States Judges of the Executive Department, 44 Admin. 

L. Rev. 159(1992). 
Simon, Ruth, For AUs, Obscurity Is Ending, Nat. L. J., June 

6, 1983. 
Skoler, Daniel L., The Administrative Judiciary: Change, 

Challenge, and Choices, 462 THE ANNALS 34 (1982). 
Skoler, Daniel L. , 77?^ Changing Role of Administrative Law 

Judges: Time to Shift Gears, 22 Judges J. 24 (1983). 
Status of the Trial Examiner in Administrative Agencies, 26 

Harv. L. Rev. 51 (1974). 
Symposium: Administrative Law Judges, 6 W. New Eng. L. 

Rev. 587 (1984). 
Symposium: Contemporary Issues in Administrative 

Adjudication, 39 U.C.L.A. L. Rev. 1055 (1992). 
Symposium: Review of Administrative Adjudication, 26 ADMIN. 

L. Rev. 51 (1974). 
Thomas, Morgan, Tales from the Forgotten Judiciary, 63 

A.B.A. J. 301 (1977). 
Thomas, Morgan, Vie Selection of Federal Hearing Examiners: 

Pressure Groups and the Administrative Process, 59 Yale L. 

J. 431 (1950). 
Thomas, Morgan, Vie 350 Hearing Examiners: Chairman 

Wiley Asks for Open Choice for Witness, 33 A.B.A. J. 421 

(1947). 
Timony, James P., Disciplinary Proceedings Against Federal 

Administrative Law Judges, 6 W. New Eng. L. Rev. 807 

(1984). 
Tuggle, Kenneth H., Status of Federal Hearing Examiners, 22 

ICCPrac. J. 129(1954). 
Verkuil, Paul, A Study of Immigration Procedures, 31 UCLA L. 

Rev. 1141 (1984). 
Verkuil, Paul, A Study of Informal Adjudication Procedures, 43 

U. Chi. L. Rev. 739 (1976). 
Verkuil, Paul, Refections Upon the Federal Administrative 

Judiciary, 39 UCLA L. Rev. 1341 (1992). 



Manual for AUs 219 



Verkuil, Paul, The Emerging Concept of Administrative 

Procedure, 78 COLUM. L. REV. 258 (1978). 
Von Rintelin, Victor A., Hearing Examiner Recruitment and the 

Government Lawyer, 35 ICC Prac. J. 7 (1967). 
Wagner, Warren H., 77?^ Future of the Interstate Commerce 

Commission and Its Examiners, 19 ICC Prac. J. 271 (1951). 
Wald, Patricia, Some Thoughts on Beginning and Ends: Court 

of Appeals Review of Administrative Law Judges' Findings and 

Opinions, 67 Wash. U. L. Q. 661 (1989). 
Westwood, Howard C, Administrative Proceedings: 

Techniques of Presiding, 50 A.B.A. J. 659 (1964). 
Woodali, Emery J., Appointment and Compensation of Federal 

Hearing Examiners, 10 FED. Bar J. 391 (1949). 
Zankel, Norman, A Unified Corps of Federal Administrative 

Law Judges is Not Needed, 6 W. New Eng. L. Rev. 723 

(1984). 
Zwerdling, Joseph, Reflections on the Role of an Administrative 

Law Judge, 25 ADMIN. L. Rev. 9 (1973). 
Zwerdling, Joseph, The Role and Functions of Fedral Hearing 

Examiners, 400 THE Annals 27 (1972). 



Government Reports 



Administrative Conference of the United States 

Lester, Report on Section II Hearing Examiners, to the 
Committee on Personnel, Administrative Conference of the 
U.S. (August 23, 1962). 

Name Change for Hearing Officers, Transcript of ACUS Plenary 
Session, October 22, 1969. 

Park, Robert E., Several Matters in Regard to Examiners and 
Government Attorneys: A Report for the Committee on 
Personnel on Its Current Recommendations. 1 ACUS 281 424 
(1971). 

Rosenblum, Victor G., The Administrative Law Judge in the 
Administrative Process: Interrelations of Case Law with 
Statutory and Pragmatic Factors in Determining AU Roles. 
Reprinted in Recent Studies Relevant to the Disability 
Hearings and Appeals Crisis. U.S. Congress. House 
Committee on Ways and Means. Subcommittee on Social 



220 Appendix IV - Adjudication Bibliography 



Security. 94th Cong., 1st Sess., December 20, 1975, pp. 171- 

245. 
Federal Administrative Law Judge Hearings-Statistical Report 

for 1975. Wash., D.C., U.S. Gov't Printing Office (1977). 
Federal Administrative Law Judge Hearings-Statistical Report 

for 1976-1978. Wash., D.C., U.S. Gov't Printing Office 

(1980). (See especially Lubbers, "The Administrative Law 

Judge," Chapter 1, p. 7.) 
Administrative Law Judges: Should An Independent Corps Be 

Created? Transcript of ACUS Plenary Session, July 27, 1987. 
Perritt, Henry, Adjudication of Civil Penalties Under the 

Federal Aviation Act, 1991 ACUS 764. 
Frye, John, Study of Non-AU Hearing Programs, Report to the 

Administrative Conference of the U.S. (August, 1991). 

[Reprinted in 44 Admin. L. Rev. 261 (1992)] 
Verkuil, Gifford, Koch, Pierce and Lubbers, 77?^ Federal 

Administrative Judiciary, 1992 ACUS 771. [See also 

Executive Summary dated January 1993.] 

ACUS Recommendations (Codified at 1 CFR §305) 

* Recommendation 68-6, Delegation of Final Decisional 
Authority Subject to Discretionary Review By the Agency 

* Recommendation 69-6, Compilation of Statistics on 
Administrative Proceedings by Federal Departments and 
Agencies 

* Recommendation 69-9, Recruitment and Seleaion of Hearing 
Examiners; Continuing Training for Government Attorneys and 
Hearing Examiners; Creation of a Center for Continuing Legal 
Education in Government 

* Recommendation 72-6, C/v/7 Money Penalties as a Sanaion 

* Recommendation 74-1, Subpena Power in Formal Rulemaking 
and Formal Adjudication 

* Recommendation 78-2, Procedures for Determining Social 
Security Claims 

* Recommendation 78-3, Time Limits on Agency Actions 

* Recommendation 79-3, Agency Assessment and Mitigation of 
Civil Money Penalties 

* Recommendation 83-3, Agency Structures for Review of 
Decisions of Presiding Officers Under the Administrative 
Procedure Act 



Manual for ALJs 221 



* Recommendation 86-2, Use of Federal Rules of Evidence in 
Federal Agency Adjudications 

* Recommendation 86-3, Agencies' Use of Alternative Means of 
Dispute Resolution 

* Recommendation 86-4, The Split-Enforcement Model for 
Agency Adjudication 

* Recommendation 86-7, Case Management as a Tool for 
Improving Agency Adjudication 

* Reconmiendation 87-12, Adjudication Practices and 
Procedures of the Federal Bank Regulatory Agencies 

* Recommendation 88-5, Agency Use of Settlement Judges 
♦Recommendation 90-1, Civil Money Penalties for Federal 

Aviation Violations 

* Reconmiendation 90-4, Social Security Disability Program 
Appeals Process: Supplementary Recommendations 

* Recommendation 91-8, Adjudication of Civil Penalties Under 
the Federal Aviation Act 

* Reconmiendation 92-7, Tlie Federal Administrative Judiciary 



U.S. Civil Service Commission 



Report to the Committee on Hearing Officers of the President's 

Conference on Administrative Procedure, U.S. Civil Service 

Commission, 1953. 
Report of Advisory Committee for Hearing Examiners to United 

States Civil Service Commission, Office of Director, Office of 

Hearing Examiners, U.S. Civil Service Commission (July 2, 

1963) 
Material for the Advisory Committee on Hearing Examiners, 

U.S. Civil Service Commission (November 1967). 
Park, Selective Certification: A Study of the Arguments For and 

Against, Paper submitted to the U.S. Civil Service 

Commission (September 11, 1968). 
Report of the Committee on the Study of the Utilization of 

Administrative Law Judges. [The La Macchia Report.] (July 

30, 1974.). 
Final Report of the Advisory Committee on Administrative Law 

Judges (February 14, 1978). 



222 Appendix IV - Adjudication Bibliography 



U.S. Congress. House of Representatives 

Background Material on Social Security Hearings and Appeals, 
Subcommittee on Social Security, Committee on Ways and 
Means, Committee Print 94-79, 94th Cong., 1st Sess. 
(September 17, 1975). 

Recent Studies Relevant to the Disability Hearings and Appeals 
Crisis, Subconmiittee on Social Security, Committee on Ways 
and Means, 94th Cong., 1st Sess. (December 20, 1975). 

Background Material on H.R. 5723: Conversion of Temporary 
Social Security AUs, Subcommittee on Social Security, 
Committee on Ways and Means, Committee Print 95-16, 95th 
Cong., 1st Sess., (Apnl 18, 1977). 

Administrative Law Judges, Hearing before the Subcommittee on 
Civil Service of the Post Office and Civil Service Committee 
on H.R. 865 (change of job title and other matters), 95th 
Cong., 1st Sess., Committee Serial No. 95-15 (June 21, 1977). 

Conversion of Temporary Administrative Law Judges. Report 
95-617, to accompany H.R. 5723, 95th Cong., 1st Sess. 
(October 31, 1977). 

Social Security Administrative Law Judges: Survey and Issue 
Paper, Subcommittee on Social Security, Committee on Ways 
and Means, Committee Print 96-2, 96th Cong., 1st Sess. 
(January 27, 1979). 

Regulatory Reform Act of 1979, Hearings before the 
Subcommittee on Administrative Law and Governmental 
Relations of the Committee on the Judiciary, Committee Serial 
No. 41, 96th Cong., 1st and 2d Sess. on H.R. 3263. Nov. 7, 
13, 16, 29, Dec. 3, 5, 10, 1979; January 29, Feb. 1 and 5, 
1980 (Parts 1 and 2). 

Selection and Oversight of Administrative Law Judges, Hearings 
before the Committee on Post Office and Civil Service on 
H.R. 6768, 96th Cong., 2d Sess., Serial No. 96-79 (April 24, 
May 6, 1980). 

Administrative Law Judge Program of the Federal Trade 
Commission, Hearings before the Subcommittee on 
Investigations, House Comm. on Post Office and Civil 
Service, 96th Cong., 2d Sess., Serial No. 96-94 (June 17, 
1980). 

Administrative Law Judges, Report No. 96-1186, Committee on 
Post Office and Civil Service, H.R., 96th Cong., 2d Sess. 
(July 23, 1980). 



Manual for AUs 223 



Administrative Law Judge Corps Act, Hearing before the 
Subcommittee on Administrative Law and Governmental 
Relations, House Committee on the Judiciary on H.R. 1554 
and H.R. 2726, 100th Cong., 2d Sess., Serial No. 57 (March 
17, 1988). 

Judicial Independence of Administrative Law Judges at the 
Social Security Administration, Hearing before the 
Subcommittee on Social Security of the Committee on Ways 
and Means, 101st Cong., 2d Sess., Committee Serial No. 101- 
117 (June 13, 1990). 

U.S. Congress. Senate 

Study on Federal Regulation, 5 vols.; Delay in the Regulatory 
Process, Committee on Governmental Affairs, Vol. IV, 
Prepared Pursuant to S. Res. 71, 95th Cong., 1st Sess., July 
1977. 

Increase in Number of Administrative Law Judge Positions, 
Committee on Governmental Affairs Report to Accompany 
H.R. 6975, 95th Cong., 2d Sess., Rept. No. 95-697 (March 9, 
1978). 

Regulatory Reform Legislation, Hearings Before the Committee 
on Governmental Affairs on S. 262, S. 755, S. 445, S. 93, 
Committee on Governmental Affairs, pts. 1-2, 96th Cong., 1st 
Sess. (March-May 1979). 

Hearings on S. 262 and S. 755, Subcommittee on 
Administrative Practice and Procedure, Committee on the 
Judiciary, 96th Cong. (July 1979). 

Administrative Law Judge System, Hearings, Subcommittee for 
Consumers, Committee on Commerce, Science, and 
Transportation, 96th Cong., 2d Sess. (September 4-5, 1980). 

Reform of Federal Regulations, Joint Report of the Committee 
on Governmental Affairs and the Committee on the Judiciary, 
to accompany S. 262 (Oct. 30, 1980) (Parts 1 and 2) 

Social Security Disability Reviews: The Role of the 
Administrative Law Judge, Hearing before the Subcommittee 
on Oversight of Government Management of the Committee on 
Governmental Affairs, 98th Cong., 1st Sess. (June 8, 1983). 

Administrative Law Judge Corps Act, Hearings before the 
Subcommittee on Administrative Practice and Procedure, 
Committee on the Judiciary on S. 1275, 98th Cong., 1st Sess., 
Serial No. J-98-45, (June 23, September 20, 1983). 



224 Appendix IV - Adjudication Bibliography 



The Role of the Administrative Law Judge in the Title II Social 
Security Disability Insurance Program, Report of the 
Subcommittee on Oversight of Government Management of the 
Committee on Governmental Affairs, 98th Cong., 1st Sess., 
Committee Print 98-1 1 1 (October 1983). 

Administrative Law Judge Corps Act S. 673, Hearing before the 
Subcommittee on Administrative Practice and Procedure, 
Committee on the Judiciary, 99th Cong., 2d Sess., Committee 
Serial No. J-99-105 (May 13, 1986). 

Administrative Law Judge Corps Act, Hearing before the 
Subcommittee on Courts and Administrative Practice, 
Committee on the Judiciary on S. 950, 100th Cong., 1st Sess., 
Committee Serial No. J- 100-31 (June 21, 1987). 

Administrative Law Judge Corps Act, Hearing before the 
Subcommittee on Courts and Administrative Practice, 
Committee on the Judiciary on S. 594, 101st Cong., 1st Sess., 
Serial No. J-101-22 (June 13, 1989). 

Administrative Law Judge Corps Act, Committee on the 
Judiciary Report on S. 594, 101st Cong., 2d Sess., S. Rpt. 
101-467 (September 19, 1990). 

U.S. Department of Justice, 77?^ Needs of the Federal Courts, 
Report of Committee on Revision of the Federal Judicial 
System, (January 1977). 

U.S. General Accounting Office 

Social Security Administration Needs to Better Manage the 

Travel of Its Administrative Law Judges. Report of the 

Comptroller General of the United States, MWD-76-18 

(December 5, 1975). 
Administrative Law Process: Better Management is Needed, 

Report by the Comptroller General to the Congress. FPCD 

78-25. (May 15, 1978). 
Review of Administrative Law Judge Activities and the Hearing 

Process at the Federal Energy Regulatory Conmiission, 

G.A.O. Report to Hon. John D. Dingell, House of 

Representatives (February 13, 1979). 
Management Improvements in the Administrative Process: Much 

Remains to Be Done, Report by the Comptroller General to the 

Congress. FPCD 79-44. (May 23, 1979). 
Medicare Claims: HCFA Proposal to Establish an 

Administrative Law Judge Unit, U.S. G.A.O. Briefing Report 



Manual for AUs 225 



to Congressional Committees, GAO/HRD-88-84 BR (April 
1988). 
Administrative Law Judges: Appointment of Women and Social 
Security Administration Staff Attorneys, G.A.O. Report to 
Hon. Sander M. Levin, House of Representatives, GAO/GGD- 
89-5 (October 1988). 

U.S. Office of Personnel Management 

U.S. Office of Personnel Management, Administrative Law 

Judge. Announcement No. 318. (various editions). 
U.S. Office of Personnel Management, Administrative Law 

Judge Program Handbook (May 1989). 
Sharon, Amiel T., An Investigation of Reference Ratings for 

Applicants for Administrative Law Judge. 0PM Personnel 

Research Report 80-6 (May, 1980). 
Sharon, Amiel T., Validation of the Administrative Law Judge 

Examination. 0PM Personnel Research Report 80-15 (June 

1980). 
U.S. Office of Persormel Management, Administrative Law 

Judge Program Handbook, (May 1989). 

Other Reports 

American Bar Association. Judicial Administration Division. 
Conference of Administrative Law Judges, Symposium on a 
Unified Corps of Administrative Law Judges—How Will It 
Work, Washington, D.C., January 28, 1977. 

Associated Staff Attorneys of the Office of Hearings and 
Appeals. National Treasury Employees Union, Social Security 
Administrative Law Judges: The Need to Change The 
Administrative Law Judge Examination (September 1989). 

Commission on Organization of the Executive Branch of the 
Government, Legal Services and Procedure, Report to the 
Congress, Recommendation No. 52 (March 1955). 

Committee on Administrative Procedure Appointed by the 
Attorney General, Administrative Procedure in Government 
Agencies, S. Doc. No. 8, 77th Cong., 1st Sess. (1941). 

Development Dimensions International, Development of Criteria 
and Procedures for Selection of Administrative Judge 
Positions, Report to Department of the Army (January 31, 
1981). 



226 Appendix IV - Adjudication Bibliography 



Federal Trial Examiners Conference. 77?^ Case for 

Administrative Trial Judge. Washington, D.C.: The Casillas 
Press, Inc., Washington, D.C., 1969. 

Forum of U.S. Administrative Law Judges, Administrative Law 
Judges: A Case Study of Recruitment and Retention Concerns^ 
March 25, 1990, reprinted in Hearing to Consider S. 2274 
before the Sen. Committee on Governmental Affairs, 101st 
Cong. 2d. Sess., S. Hrg. 101-739 (March 21, 22 1990) 

Government Law Center of Albany Law School, Art of 
Administrative Practice I, (Contains training materials on 
prehearing management, role of AU in settlement, conducting 
heaimgs), Albany, NY, (February 1991). 

Government Law Center of Albany Law School, Ethical 
Considerations in Administrative Adjudication, Albany, NY, 
(October 1990). 

Horsky, Charles and Mahin, Amy, The Operation of the Social 
Security Administration Hearing and Decisional Machinery, 
Report to the Social Security Commission, Covington and 
Burling (December 1968). 

E. Kintner, R. Doyle, E. Reynolds, and Winings, L., 
Appointment and Status of Federal Hearing Officers, Report of 
Committee on Hearing Officers of the President's Conference 
on Administrative Procedure (August 10, 1954). 

Lester, R., McElwain, J., Maloy, L., and Schamikov, W., 
Appointment and Status of Federal Hearing Officers, Report to 
the President's Conference on Administrative Procedure 
(September 3, 1954). 

Lewis, Floyd, The Administrative Law Judge System, 
Congressional Research Service, American Law Division, 
(September 9, 1982). 

Social Security Administration, Operational Analysis of the 
Office of Hearings and Appeals (SSA Publication 70-032) 
(Amiually through September 30, 1986). 

Social Security Administration, Key Workload Indicators, Office 
of Hearings and Appeals (FY 1988-present). 

Streb, Paul, The AU Digest: A Summary of Statutes, 
Regulations of MSPB and 0PM, and Decisions of MSPB and 
the Courts Concerning Disciplinary and Other Actions 
Affecting Administrative Law Judges, Administrative Law 
Judge, MSPB (July 6, 1990). 



Manual for AUs 227 



U.S. Attorney General Opinions 

Administrative Procedure Act, Promotion of Hearing Examiners, 

41 Op. Att'y Gen. 74 (February 23, 1951). 
Administrative Procedure Act, Promotion to Chief Hearing 

Examiner at Increased Compensation, 42 Op. Att'y Gen. 289 

(November 24, 1964). 
Administrative Procedure Act --Reprimand of Administrative Law 

Judge, 43 Op. Att'y Gen., No. 9 (January 18, 1977). 



APPENDIX V 



CITATIONS TO PROCEDURAL RULES 

Agriculture 7 CFR §§1.27-.28, 1.130-.151, 

Parts 47, 50, 202, 900 
Architectural and Transportation 

Barriers Compliance Board 36 CFR Part 1 150 

Commerce 

International Trade Administration 15 CFR Part 354 

National Oceanic and Atmospheric 

Administration 15 CFR Part 904 

Commodity Futures Trading Commission 17 CFR 

Parts 10, 12,13 

Consumer Product Safety Commission 16 CFR Parts 1025, 

1051, 1052 

Environmental Protection Agency 40 CFR Parts 22, 25, 

Parts 104, 108, §124.71, 
Parts 164, 209 

Federal Communications Commission 47 CFR Part 1 

Federal Deposit Insurance Corporation 12 CFR Part 308 

Federal Emergency Management Agency 44 CFR Parts 1, 68 

Federal Energy Regulatory Commission 18 CFR Part 385 

Federal Labor Relations Authority 5 CFR Parts 2422, 2423 

Federal Maritime Commission 46 CFR Part 502 

Federal Mine Safety and 

Health Review Commission 29 CFR Part 2700 

Federal Reserve Board 12 CFR Parts 262, 263 

Federal Trade Commission 16 CFR §§1.7-. 26, 

Part 3, §4.7 

Food and Drug Administration (HHS) 21 CFR 

Parts 10, 12, 16 

Housing and Urban Development 24 CFR Parts 26, 

1720,§3282.152 

Interior 43 CFR Part 4; 50 CFR Part 11 

International Trade Commission 19 CFR Part 210 

Interstate Commerce Commission 49 CFR 

Parts 1100-1118 



230 Appendix V - Citations to Procedural Rules 



Justice 

Drug Enforcement Administration 21 CFR 

§§1301.51-.57, 

§§1303.31-37, 

§§1311.51-.53, 

§§1312.41-.47, 

§§98.310-.314, 

Part 580; 

41 CFR Part 50-203 

Part 1316 

Other 28 CFR §48.10 

Labor 

Black Lung Benefits Cases 20 CFR §§725.350-.483 

Longshoremen's Compensation Cases 20 CFR 

§§702.301-.394 
Office of Federal 

Contract Compliance 41 CFR §60-1.21-26, 

Part 60-30 

Other Cases 29 CFR §4.10, Part 6, 

§§40.101-.272,98. 310-314, 
Part 580; 41 CFR Parts 50-203 

Merit Systems Protection Board 5 CFR Parts 1201, 

1203, 1209 

National Credit Union Administration 12 CFR Part 747 

National Labor Relations Board 29 CFR Parts 101, 102 

National Transportation Safety Board 49 CFR Part 82 1 

Nuclear Regulatory Commission 10 CFR Part 2 

Occupational Safety and Health 

Administration (Labor) 29 CFR Parts 1905, 1911 

Occupational Safety and Health Review Commission 29 CFR 

Part 2200 

Postal Rate Commission 39 CFR Part 3001 

Postal Service 39 CFR Parts 912-966 

Securities and Exchange Commission 17 CFR §§200.110- 

.114. Parts 201, 202 

Small Business Administration 13 CFR Parts 101.9, Parts 

134,142 

Social Security Administration (HHS) 20 CFR 

§§404.900-. 996, 

§§410.601-.707, 

§§416.1400-. 1494; 

42 CFR §§405.701-.750, 



Manual for AUs 231 



§§405.801-.872, 
§§405.1801-. 1889 
Transportation 

Coast Guard 46 CFR §5.501-.807 

Federal Aviation Administration 14 CFR Parts 11, 13.63 

Federal Highway Administration 49 CFR Parts 386, 389 

Maritime Administration 46 CFR Part 201 

National Highway Traffic Safety Admin 49 CFR Parts 

511,553 

Office of the Secretary 14 CFR Part 302 

Treasury 

Bureau of Alcohol, Tobacco and Firearms 27 CFR 

§§178.71-.82,Part200 

Comptroller of the Currency 12 CFR Part 19 

Internal Revenue Service 26 CFR §601.601; 31 CFR 

§§10.50-76 



NOTE: Several of the above agencies, as well as other agencies with financial 
assistance programs, have published rules of practice for formal (AU) 
hearings to effectuate title VI of the Civil Rights Act, which guarantees 
nondiscrimination in such programs. Citations for these rules can be found in 
the CFR Index under the heading "civil rights." 



APPENDIX VI 



ADMINISTRATIVE PROCEDURE ACT 
Title 5, U.S. Code 

Chapter S—Administrative Procedure 

* « * « 

§551. Definitions. 

§553. Rulemaking. 

§554. Adjudications. 

§555. Ancillary matters. 

§556. Hearings; presiding employees; powers and duties; burden of 
proof; evidence; record as basis of decision. 

§557. Initial decisions; conclusiveness; review by agency; 
submissions by parties; contents of decisions; record. 

§558. Imposition of sanctions; determination of applications for 
licenses; suspension, revocation, and expiration of licenses. 

§559. Effect on other laws; effect of subsequent statute. 

« « « « 

§551. Definitions 

For the purpose of this subchapter 

(1) "agency" means each authority of the Government of the United States, whether or 
not it is within or subject to review by another agency, but does not include 

(A) the Congress; 

(B) the courts of the United Sutes; 

(C) the governments of the territories or possessions of the United States; 

(D) the government of the District of Columbia; 

or except as to the requirements of section 552 of this title 

(E) agencies composed of representatives of the parties or of representatives of 
organizations of the parties to the disputes determined by them; 

(F) courts martial and military commissions; 

(G) military authority exercised in the field in time of war or in occupied 
territory; or 

(H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; 
chapter 2 of title 41; or sections 1622, 1884, 1891-1902, and former section 1641(b)(2), of 
title 50, appendix; 

(2) "person" includes an individual, partnership, corporation, association, or public or 
private organization other than an agency; 

(3) "party" includes a person or agency named or admitted as a party, or properly 
seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a 
person or agency admitted by an agency as a parly for limited purposes; 

(4) *'rule" means the whole or a part of an agency statement of general or particular 
applicability and future effect designed to implement, interpret, or prescribe law or policy or 
describing the organization, procedure, or practice requirements of an agency and includes 
the approval or prescription for the future of rates, wages, corporate or fmancial structures 
or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or 
of valuations, costs, or accounting, or practices bearing on any of the foregoing; 

(5) "rule making" means agency process for formulating, amending, or repealing a rule; 



234 Appendix VI - Administrative Procedure Act 



(6) 'order" means the whole or a part of a final disposition, whether affirmative, 
negative, injunctive, or declaratory in form, of an agency in a matter other than rule making 
but including licensing; 

(7) "adjudication" means agency process for the formulation of an order; 

(8) "license' includes the whole or a part of an agency permit, certificate, approval, 
registration, charter, membership, statutory exemption or other form of permission; 

(9) "licensing" includes agency process respecting the grant, renewal, denial, 
revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or 
conditioning of a license; 

(10) 'sanction' includes the whole or a part of an agency 

(A) prohibition, requirement, limitation, or other condition affecting the freedom 
of a person; 

(B) withholding of relief; 

(C) imposition of penalty or fine; 

(D) destruction, taking, seizure, or withholding of property; 

(E) assessment of damages, reimbursement, restitution, compensation, costs, 
charges, or fees; 

(F) requirement, revocation, or suspension of a license; or 

(G) taking other compulsory or restrictive action; 

(11) 'relier includes the whole or a part of an agency 

(A) grant of money, assistance, license, authority, exemption, exception, privilege, or 
remedy; 

(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or 

(C) taking of other action on the application or petition of, and beneficial to, a person; 

(12) "agency proceeding" means an agency process as defined by paragraphs (5), (7), 
and (9) of this section; 

(13) "agency action" includes the whole or a part of an agency rule, order, license, 
sanction, relief, or the equivalent or denial thereof, or failure to act; and 

(14) "ex parte communication" means an oral or written communication not on the 
public record with respect to which reasonable prior notice to all parties is not given, but it 
shall not include requests for status reports on any matter or proceeding covered by this 
subchapter. 

(Pub. L. 89-554. Sept. 6, 1966, 80 Sut. 381; Pub. L. 94-409, §4(b), Sept. 13, 1976, 90 

Sut. 1247.) 

* * * * 

§553. Rulemaking 

(a) This section applies, according to the provisions thereof, except to the extent that 
there is involved 

(1) a military or foreign affairs function of the United States; or 

(2) a matter relating to agency management or personnel or to public property, loans, 
grants, benefits, or contracts. 

(b) General notice of proposed rule making shall be published in the Federal Register, 
unless persons subject thereto are named and either personally served or otherwise have 
actual notice thereof in accordance with law. The notice shall include 

(1) a statement of the time, place, and nature of public rule making proceedings; 

(2) reference to the legal authority under which the rule is proposed; and 

(3) either the terms or substance of the proposed rule or a description of the subjects 
and issues involved. 

Except when notice or hearing is required by statute, this subsection does not apply 



Manual for ALJs 235 



Except when notice or hearing is required by statute, this subsection does not apply 

(A) to interpretative rules, general statements of policy, or rules of agency 
organization, procedure, or practice; or 

(B) when the agency for good cause finds (and incoiporates the finding and a 
brief statement of reasons therefor in the rules issued) that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public interest. 

(c) After notice required by this section, the agency shall give interested persons an 
opportunity to participate in the rule making through submission of written data, views, or 
arguments with or without opportunity for oral presentation. After consideration of the 
relevant matter presented, the agency shall incorporate in the rules adopted a concise 
general sutement of their basis and purpose. When rules are required by statute to be made 
on the record after opportunity for an agency hearing, sections 556 and 557 of this title 
apply instead of this subsection. 

(d) The required publication or service of a substantive rule shall be made not less than 
30 days before its effective date, except 

(1) a substantive rule which grants or recognizes an exemption or relieves a restriction; 

(2) inteipretative rules and statements of policy; or 

(3) as otherwise provided by the agency for good cause found and published with the 
rule. 

(e) Each agency shall give an interested person the right to petition for the issuance, 

amendment, or repeal of a rule. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 383.) 

* * * * 

§554. Adjudications 

(a) This section applies, according to the provisions thereof, in every case of 
adjudication required by statute to be determined on the record after opportunity for an 
agency hearing, except to the extent that there is involved 

(1) a matter subject to a subsequent trial of the law and the facts de novo in a court; 

(2) the selection or tenure of an employee, except a' administrative law judge appointed 
under section 3105 of this title; 

(3) proceedings in which decisions rest solely on inspections, tests, or elections; 

(4) the conduct of military or foreign affairs functions; 

(5) cases in which an agency is acting as an agent for a court; or 

(6) the certification of worker representatives. 

(b) Persons entitled to notice of an agency hearing shall be timely informed of 

(1) the lime, place, and nature of the hearing; 

(2) the legal authority and jurisdiction under which the hearing is to be held; and 

(3) the matters of fact and law asserted. 

When private persons are the moving parties, other parties to the proceeding shall give 
prompt notice of issues controverted in fact or law; and in other instances agencies may by 
rule require responsive pleading. In fixing the time and place for hearings, due regard shall 
be had for the convenience and necessity of the parties or their representatives. 

(c) The agency shall give all interested parties opportunity for 

(I) the submission and consideration of facts, arguments, offers of settlement, or 
proposals of adjustment when time, the nature of the proceeding, and the public interest 
permit; and 

'So in original. 



236 Appendix VI - Administrative Procedure Act 



(2) to the extent that the parties are unable so to determine a controversy by consent, 
hearing and decision on notice and in accordance with sections 556 and 557 of this title. 

(d) The employee who presides at the reception of evidence pursuant to section 556 of 
this title shall make the recommended decision or initial decision required by section 557 of 
this title, unless he becomes unavailable to the agency. Except to the extent required for the 
disposition of ex parte matters as authorized by law, such an employee may not 

(1) consult a person or party on a fact in issue, unless on notice and opportunity for all 
parties to participate; or 

(2) be responsible to or subject to the supervision or direction of an employee or agent 
engaged in the performance of investigative or prosecuting functions for an agency. 

An employee or agent engaged in the performance of investigative or prosecuting 
functions for an agency in a case may not, in that or a factually related case, participate or 
advise in the decision, recommended decision, or agency review pursuant to section 557 of 
this title, except as witness or counsel in public proceedings. This subsection does not apply 

(A) in determining applications for initial licenses; 

(B) to proceedings involving the validity or application of rates, facilities, or 
practices of public utilities or carriers; or 

(C) to the agency or a member or members of the body comprising the agency. 

(e) The agency, with like effect as in the case of other orders, and in its sound 

discretion, may issue a declaratory order to terminate a controversy or remove uncertainty. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 384; Pub. L. 95-251, §2(a)(l). Mar. 27, 1978, 92 

Stat. 183.) 

* * * * 

§555. Ancillary matters 

(a) This section applies, according to the provisions thereof, except as otherwise 
provided by this subchapter. 

(b) A person compelled to appear in person before an agency or representative thereof 
is entitled to be accompanied, represented, and advised by counsel or, if permitted by the 
agency, by other qualified representative. A party is entitled to appear in person or by or 
with counsel or other duly qualified represenutive in an agency proceeding. So far as the 
orderly conduct of public business permits, an interested person may appear before an 
agency or its responsible employees for the presentation, adjustment, or determination of an 
issue, request, or controversy in a proceeding, whether interlocutory, summary, or 
otherwise, or in connection with an agency function. With due regard for the convenience 
and necessity of the parties or their representatives and within a reasonable time, each 
agency shall proceed to conclude a matter presented to it. This subsection does not grant or 
deny a person who is not a lawyer the right to appear for or represent others before an 
agency or in an agency proceeding. 

(c) Process, requirement of a report, inspection, or other investigative act or demand 
may not be issued, made, or enforced except as authorized by law. A person compelled to 
submit dau or evidence is entitled to retain or, on payment of lawfiilly prescribed costs, 
procure a copy or transcript thereof, except that in a nonpublic investigatory proceeding the 
witness may for good cause be limited to inspection of the official transcript of his 
testimony. 

(d) Agency subpenas authorized by law shall be issued to a party on request and, when 
required by rules of procedure, on a statement or showing of general relevance and 
reasonable scope of the evidence sought. On contest, the court shall sustain the subpena or 
similar process or demand to the extent that it is found to be in accordance with law. In a 
proceeding for enforcement, the court shall issue an order requiring the appearance of the 



Manual for ALJs 237 



witness or the production of the evidence or data within a reasonable time under penalty of 
punishment for contempt in case of contumacious failure to comply. 

(e) Prompt notice shall be given of the denial in whole or in part of a written 
application, petition, or other request of an interested person made in connection with any 
agency proceeding. Except in affirming a prior denial or when the denial is self- 
explanatory, the notice shall be accompanied by a brief statement of the grounds for denial. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 385.) 

* * * * 

§556. Hearings; presiding employees; powers and duties; burden of 
proof; evidence; record as basis of decision 

(a) This section applies, according to the provisions thereof, to hearings required by 
section 553 or 554 of this title to be conducted in accordance with this section. 

(b) There shall preside at the taking of evidence 

(1) the agency; 

(2) one or more members of the body which comprises the agency; or 

(3) one or more administrative law judges appointed under section 3105 of this title. 
This subchapter does not supersede the conduct of specified classes of proceedings, in 

whole or in part, by or before boards or other employees specially provided for by or 
designated under statute. The functions of presiding employees and of employees 
participating in decisions in accordance with section 557 of this title shall be conducted in an 
impartial manner. A presiding or participating employee may at any time disqualify himself. 
On the filing in good faith of a timely and sufficient affidavit of personal bias or other 
disqualification of a presiding or participating employee, the agency shall determine the 
matter as a part of the record and decision in the case. 

(c) Subject to published rules of the agency and within its powers, employees presiding 
at hearings may 

(1) administer oaths and affirmations; 

(2) issue subpenas authorized by law; 

(3) rule on offers of proof and receive relevant evidence; 

(4) take depositions or have depositions taken when the ends of justice would be served; 

(5) regulate the course of the hearing; 

(6) hold conferences for the settlement or simplification of the issues by consent of the 
parties or by the use of alternative means of dispute resolution as provided in subchapter IV 
of this chapter; 

(7) inform the parties as to the availability of one or more alternative means of dispute 
resolution, and encourage use of such methods; 

(8) require the attendance at any conference held pursuant to paragraph (6) of at least 
one representative of each party who has authority to negotiate concerning resolution of 
issues in controversy; 

(9) dispose of procedural requests or similar matters; 

(10) make or recommend decisions in accordance with section 557 of this title; and 

(1 1) take other action authorized by agency rule consistent with this subchapter. 

(d) Except as otherwise provided by statute, the proponent of a rule or order has the 
burden of proof. Any oral or documentary evidence may be received, but the agency as a 
matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly 
repetitious evidence. A sanction may not be imposed or rule or order issued except on 
consideration of the whole record or those parts thereof cited by a party and supported by 
and in accordance with the reliable, probative, and substantial evidence. The agency may, 
to the extent consistent with the interests of justice and the policy of the underlying statutes 



238 Appendix VI - Administrative Procedure Act 



administered by the agency, consider a violation of section 557(d) of this title sufficient 
grounds for a decision adverse to a party who has knowingly committed such violation or 
knowingly caused such violation to occur. A party is entitled to present his case or defense 
by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross- 
examination as may be required for a fiJll and true disclosure of the facts. In rule making or 
determining claims for money or benefits or applications for initial licenses an agency may, 
when a party will not be prejudiced thereby, adopt procedures for the submission of all or 
part of the evidence in written form. 

(e) The transcript of testimony and exhibits, together with all papers and requests filed 
in the proceeding, constitutes the exclusive record for decision in accordance with section 
557 of this title and, on payment of lawfully prescribed costs, shall be made available to the 
parties. When an agency decision rests on official notice of a material fact not appearing in 
the evidence in the record, a party is entitled, on timely request, to an opportunity to show 
the contrary. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 386; Pub. L. 94-409, §4(c), Sept. 13, 1976, 90 
Stat. 1247; Pub. L. 95-251, §2(a)(l), Mar. 27, 1978, 92 Sut. 183; Pub. L. 101-552, §4(a), 

Nov. 15, 1990, 104 Sut. 2737.) 

• * « * 

§557. Initial decisions; conclusiveness; review by agency; 
submissions by parties; contents of decisions; record 

(a) This section applies, according to the provisions thereof, when a hearing is required 
to be conducted in accordance with section 556 of this title. 

(b) When the agency did not preside at the reception of the evidence, the presiding 
employee or, in cases not subject to section 554(d) of this title, an employee qualified to 
preside at hearings pursuant to section 556 of this title, shall initially decide the case unless 
the agency requires, either in specific cases or by general rule, the entire record to be 
certified to it for decision. When the presiding employee makes an initial decision, that 
decision then becomes the decision of the agency without further proceedings unless there is 
an appeal to, or review on motion of, the agency within time provided by rule. On appeal 
from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule. When the 
agency makes the decision without having presided at the reception of the evidence, the 
presiding employee or an employee qualified to preside at hearings pursuant to section 556 
of this title shall first recommend a decision, except that in rule making or determining 
applications for initial licenses 

(1) instead thereof the agency may issue a tentative decision or one of its responsible 
employees may recommend a decision; or 

(2) this procedure may be omitted in a case in which the agency finds on the record that 
due and timely execution of its functions imperatively and unavoidably so requires. 

(c) Before a recommended, initial, or tentative decision, or a decision on agency review 
of the decision of subordinate employees, the parties are entitled to a reasonable opportunity 
to submit for the consideration of the employees participating in the decisions 

(1) proposed findings and conclusions; or 

(2) exceptions to the decisions or recommended decisions of subordinate employees or 
to tentative agency decisions; and 

(3) supporting reasons for the exceptions or proposed findings or conclusions. 

The record shall show the ruling on each finding, conclusion, or exception presented. 
All decisions, including initial, recommended, and tentative decisions, are a part of the 
record and shall include a statement of 



Manual for ALJs 239 



(A) findings and conclusions, and the reasons or basis therefor, on all the 
material issues of fact, law, or discretion presented on the record; and 

(6) the appropriate rule, order, sanction, relief, or denial thereof. 
(d)(1) In any agency proceeding which is subject to subsection (a) of this section, 
except to the extent required for the disposition of ex parte matters as authorized by law 

(A) no interested person outside the agency shall make or knowingly cause to be 
made to any member of the body comprising the agency, administrative law judge, or other 
employee who is or may reasonably be expected to be involved in the decisional process of 
the proceeding, an ex parte communication relevant to the merits of the proceeding; 

(6) no member of the body comprising the agency, administrative law judge, or 
other employee who is or may reasonably be expected to be involved in the decisional 
process of the proceeding, shall make or knowingly cause to be made to any interested 
person outside the agency an ex parte communication relevant to the merits of the 
proceeding; 

(C) a member of the body comprising the agency, administrative law judge, or 
other employee who is or may reasonably be expected to be involved in the decisional 
process of such proceeding who receives, or who makes or knowingly causes to be made, a 
communication prohibited by this subsection shall place on the public record of the 
proceeding: 

(i) all such written communications; 

(ii) memoranda stating the substance of all such oral communications; 
and 

(iii) all written responses, and memoranda stating the substance of all 
oral responses, to the materials described in clauses (i) and (ii) of this subparagraph; 

(D) upon receipt of a communication knowingly made or knowingly caused to be 
made by a party in violation of this subsection, the agency, administrative law judge, or 
other employee presiding at the hearing may, to the extent consistent with the interests of 
justice and the policy of the underlying statutes, require the party to show cause why his 
claim or interest in the proceeding should, not be dismissed, denied, disregarded, or 
otherwise adversely affected on account of such violation; and 

(E) the prohibitions of this subsection shall apply beginning at such time as the 
agency may designate, but in no case shall they begin to apply later than the time at which a 
proceeding is noticed for hearing unless the person responsible for the communication has 
knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the 
lime of his acquisition of such knowledge. 

(2) This subsection does not constitute authority to withhold information from 

Congress. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 387; Pub. L. 94-409, §4(a), Sept. 13, 1976, 90 

Sut. 1246.) 

* * * * 

§558. Imposition of sanctions; determination of applications for 
licenses; suspension, revocation, and expiration of licenses 

(a) This section applies, according to the provisions thereof, to the exercise of a power 
or authority. 

(b) A sanction may not be imposed or a substantive rule or order issued except within 
jurisdiction delegated to the agency and as authorized by law. 

(c) When application is made for a license required by law, the agency, with due regard 
for the rights and privileges of all the interested parties or adversely affected persons and 
within a reasonable time, shall set and complete proceedings required to be conducted in 



240 Appendix VI - Administrative Procedure Act 



accordance with sections 556 and 557 of this title or other proceedings required by law and 
shall make its decision. Except in cases of willfulness or those in which public health, 
interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment 
of a license is lawful only if, before the institution of agency proceedings therefor, the 
licensee has been given 

(1) notice by the agency in writing of the facts or conduct which may warrant the 
action; and 

(2) opportunity to demonstrate or achieve compliance with all lawful requirements. 
When the licensee has made timely and sufficient application for a renewal or a new 

license in accordance with agency rules, a license with reference to an activity of a 
continuing nature does not expire until the application has been fmally determined by the 
agency. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 388.) 

« « * « 

§559. Effect on other laws; effect of subsequent statute 

This subchapter, chapter 7, and sections 1305, 3105, 3344, 4301 (2)(E), 5372, and 

7521 of this title, and the provisions of section 5335(a)(B) of this title that relate to 

administrative law judges, do not limit or repeal additional requirements imposed by statute 

or otherwise recognized by law. Except as otherwise required by law, requirements or 

privileges relating to evidence or procedure apply equally to agencies and persons. Each 

agency is granted the authority necessary to comply with the requirements of this subchapter 

through the issuance of rules or otherwise. Subsequent statute may not be held to supersede 

or modify this subchapter, chapter 7, sections 1305, 3105, 3344, 4301(2)(E), 5372, or 7521 

of this title, or the provisions of section 5335(a)(B) of this title that relate to administrative 

law judges, except to the extent that it does so expressly. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Sut. 388; Pub. L. 90-623, §1(1), Oct. 22, 1968, 82 

Slat. 1312; Pub. L. 95-251, §2(a)(l). Mar. 27, 1978, 92 Stat. 183; Pub. L. 95-454, title 

VIII, §801(a)(3)(B)(iii), Oct. 13, 1978, 92 Sut. 1221.) 

* * » « 

Chapter 7— Judicial Review 
§701. Application; definitions. 
§702. Right of review. 
§703. Form and venue of proceeding. 
§704. Actions reviewable. 
§705. Relief pending review. 
§706. Scope of review. 

§701. Application; definitions 

(a) This chapter applies, according to the provisions thereof, except to the extent that 

(1) statutes preclude judicial review; or 

(2) agency action is committed to agency discretion by law. 

(b) For the purpose of this chapter 

(1) "agency" means each authority of the Government of the United States, whether or 
not it is within or subject to review by another agency, but does not include 

(A) the Congress; 

(B) the courts of the United States; 

(C) the governments of the territories or possessions of the United States; 

(D) the government of the District of Columbia; 



Manual for AUs 241 



(E) agencies composed of representatives of the parties or of representatives of 
organizations of the parties to the disputes determined by them; 

(F) courts martial and military commissions; 

(G) military authority exercised in the field in time of war or in occupied 
territory; or 

(H) ftinctions conferred by sections 1738, 1739, 1743, and 1744 of title 12; 
chapter 2 of title 41; or sections 1622, 1884, 1891-1902, and former section 1641(b)(2), of 
title 50, appendix; and 

(2) "person", "rule", "order", "license", "sanction", "relieP, and "agency action' have 
the meanings given them by section 551 of this title. 
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392.) 

§702. Right of review 

A person suffering legal wrong because of agency action, or adversely affected or 
aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial 
review thereof. An action in a court of the United States seeking relief other than money 
damages and stating a claim that an agency or an officer or employee thereof acted or failed 
to act in an official capacity or under color of legal authority shall not be dismissed nor 
relief therein be denied on the ground that it is against the United States or that the United 
States is an indispensable party. The United States may be named as a defendant in any such 
action, and a judgment or decree may be entered against the United States: Provided, That 
any mandatory or injunctive decree shall specify the Federal officer or officers (by name or 
by title), and their successors in office, personally responsible for compliance. Nothing 
herein (1) affects other limitations on judicial review or the power or duty of the court to 
dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) 
confers authority to grant relief if any other statute that grants consent to suit expressly or 
impliedly forbids the relief which is sought. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Sut. 392; Pub. L. 94-574, §1, Oct. 21. 1976, 90 Stat. 
2721.) 

§703. Form and venue of proceeding 

The form of proceeding for judicial review is the special statutory review proceeding 
relevant to the subject matter in a court specified by statute or, in the absence or inadequacy 
thereof, any applicable form of legal action, including actions for declaratory judgments or 
writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent 
jurisdiction. If no special statutory review proceeding is applicable, the action for judicial 
review may be brought against the United States, the agency by its official title, or the 
appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for 
judicial review is provided by law, agency action is subject to judicial review in civil or 
criminal proceedings for judicial enforcement. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Sut. 392; Pub. L. 94-574, §1, Oct. 21, 1976, 90 Stat. 
2721.) 

§704. Actions reviewable 

Agency action made reviewable by statute and final agency action for which there is no 
other adequate remedy in a court are subject to judicial review. A preliminary, procedural, 
or intermediate agency action or ruling not directly reviewable is subject to review on the 
review of the final agency action. Except as otherwise expressly required by statute, agency 
action otherwise final is final for the purposes of this section whether or not there has been 
presented or determined an application for a declaratory order, for any form of 
reconsiderations, or, unless the agency otherwise requires by rule and provides that the 
action meanwhile is inoperative, for an appeal to superior agency authority. 



242 Appendix VI - Administrative Procedure Act 



(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392.) 
§705. Relief pending review 

When an agency finds that justice so requires, it may postpone the effective date of 
action taken by it, pending judicial review. On such conditions as may be required and to 
the extent necessary to prevent irreparable injury, the reviewing court, including the court to 
which a case may be ulcen on appeal from or on application for certiorari or other writ to a 
reviewing court, may issue all necessary and appropriate process to postpone the effective 
date of an agency action or to preserve status or rights pending conclusion of the review 
proceedings. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Sut. 393.) 

§706. Scope of review 

To the extent necessary to decision and when presented, the reviewing court shall 
decide all relevant questions of law, interpret constitutional and statutory provisions, and 
determine the meaning or applicability of the terms of an agency action. The reviewing 
court shall 

(1) compel agency action unlawfijlly withheld or unreasonably delayed; and 

(2) hold unlawful and set aside agency action, fmdings, and conclusions found to be 

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 
with law; 

(B) contrary to constitutional right, power, privilege, or immunity; 

(C) in excess of statutory jurisdiction, authority, or limitations, or short of 
statutory right; 

(D) without observance of procedure required by law; 

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 
of this title or otherwise reviewed on the record of an agency hearing provided by statute; or 

(F) unwarranted by the facts to the extent that the facts are subject to trial de 
novo by the reviewing court. 

In making the foregoing determinations, the court shall review the whole record or 

those parts of it cited by a party, and due account shall be taken of the rule of prejudicial 

error. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.) 

» » « * 

§1305. Administrative law judges 

For the purpose of section* 3105. 3344, 4301(2)(D), and 5372 of this title and the 
provisions of section 5335(a)(6) of this title that relate to administrative law judges, the 
Office of Personnel Management may, and for the purpose of section 7521 of this title, the 
Merit Systems Protection Board may investigate, require reports by agencies, issue reports, 
including an annual report to Congress, prescribe regulations, appoint advisory committees 
as necessary, recommend legislation, subpena witnesses and records, and pay witness fees 
as established for the courts of the United States. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Sut. 402; Pub. L. 90-83, §1(3), Sept. 11, 1967, 81 
Stat. 196; Pub. L. 95-251, §2(a)(l), (b)(1). Mar. 27, 1978, 92 Stat. 183; Pub. L. 95-454, 
title VIII, §801(a)(3)(B)(iii), title IX, §906(a)(12), Oct. 13, 1978, 92 Sut. 1221, 1225.) 



^So in original. Probably should be "sections' 



Manual for AUs 243 



§3105. Appointment of administrative law judges 

Each agency shall appoint as many administrative law judges as are necessary for 
proceedings required to be conducted in accordance with sections 556 and 557 of this title. 
Administrative law judges shall be assigned to cases in rotation so far as practicable, and 
may not perform duties inconsistent with their duties and responsibilities as administrative 
law judges. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 415; Pub. L. 95-251, §2(a)(l), (b)(2), (d)(1). Mar. 
27, 1978, 92 Stat. 183, 184.) 

« « « « 

§3344. Details; administrative law judges 

An agency as deflned by section 551 of this title which occasionally or temporarily is 

insufficiently staffed with administrative law judges appointed under section 3105 of this 

title may use administrative law judges selected by the Office of Personnel Management 

from and with the consent of other agencies. 

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 425; Pub. L. 95-251, §2(a)(l), (b)(2). Mar. 27, 

1978, 92 Sut. 183; Pub. L. 95-454, title IX, §906(a)(2), Oct. 13, 1978, 92 Sut. 1224.) 

* « * * 

§5372. Administrative law judges 

(a) For the purposes of this section, the term "administrative law judge" means an 
administrative law judge appointed under section 3105. 

(b)(1) There shall be 3 levels of basic pay for administrative law judges (designated as 
AL-1, 2, and 3, respectively), and each such judge shall be paid at 1 of those levels, in 
accordance with the provisions of this section. The rates of basic pay for those levels shall 
be as follows: 

AL-3, rate A 65 percent of the rate of basic pay for level IV of the Executive Schedule. 

AL-3, rate B 70 percent of the rale of basic pay for level FV of the Executive Schedule. 

AL-3, rate C 75 percent of the rale of basic pay for level IV of the Executive Schedule. 

AL-3, rate D 80 percent of the rate of basic pay for level IV of the Executive Schedule. 

AL-3, rate E 85 percent of the rale of basic pay for level IV of the Executive Schedule. 

AL-3, rate F 90 percent of the rate of basic pay for level IV of the Executive Schedule. 

AL-2 95 percent of the rate of basic pay for level IV of the Executive Schedule. 

AL-1 The rate of basic pay for level FV of the Executive Schedule. 

(2) The Office of Personnel Management shall determine, in accordance with 
procedures which the Office shall by regulation prescribe, the level in which each 
adminislralive-law-judge position shall be placed and the qualifications to be required for 
appointment to each level. 

(3)(A) Upon appointment to a position in AL-3, an administrative law judge shall be 
paid at rate A of AL-3, and shall be advanced successively to rates B, C, and D of that level 
upon completion of 52 weeks of service in the next lower rate, and to rates E and F of that 
level upon completion of 104 weeks of service in the next lower rate. 

(B) The Office of Personnel Management may provide for appointment of an 
administrative law judge in AL-3 al an advanced rate under such circumstances as the Office 
may determine appropriate. 

(c) The Office of Personnel Management shall, ^ prescribe regulations necessary to 
administer this section. 



'So in original. The comma probably should not appear. 



244 Appendix VI - administrative Procedure Act 



(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 473, §5362; Pub. L. 95-251, §2(a)(l), (b)(1). 
Mar. 27, 1978, 92 Sui. 183; renumbered §5372 and amended Pub. L. 95-454, title Vni, 
§801(a)(3)(A)(ii), title K, §906(a)(2), Oct. 13, 1978, 92 Stat. 1221, 1224; Pub. L. 101- 
509, title V, §529 (title I, §104(a)(l)l, Nov. 5, 1990, 104 Stat. 1427, 1445.) 

Amendments 

1990 Pub. L. 101-509 amended section generally. Prior to amendment, section read as 
follows: 'Administrative law judges appointed under section 3105 of this title are entitled to 
pay prescribed by the Office of Personnel Management independently of agency 
recommendations or ratings and in accordance with subchapter III of this chapter and 

chapter 51 of this title.' 

« « * * 

§7521. Actions against administrative law judges 

(a) An action may be taken against an administrative law judge appointed under section 
3105 of this title by the agency in which the administrative law judge is employed only for 
good cause established and determined by the Merit Systems Protection Board on the record 
after opportunity for hearing before the Board. 

(b) The actions covered by this section are 

(1) a removal; 

(2) a suspension; 

(3) a reduction in grade; 

(4) a reduction in pay; and 

(5) a ftirlough of 30 days or less; but do not include 

(A) a suspension or removal under section 7532 of this title; 

(B) a reduction-in-force action under section 3502 of this title; or 

(C) any action initiated under section 1215 of this title. 

(Added Pub L. 95-454, title II, §204(a). Oct. 13, 1978, 92 Stat. 1137, and amended Pub. 
L. 101-12, §9(a)(2), Apr. 10, 1989, 103 Slat. 35.) 



■H U.S. GOVERNMENT PRINTING 0FFICE:1 994-364-669/1 0039 



ACUS_BOOK_10 

Property of ACUS US Government 



Members of the Conference 

(as of December 31, 1993) 

Acting Chairman 

Sally Katzen 

Council Members 

Susan Au Allen John D. Podesta 
Walter Gellhorn JackQuInn 
0. Boyden Gray Paul A.Vander Myde 
William R. Neale 



Public Members 

Curtis H. Barnette 

Warren Belmar 

Caryl S. Bernstein 

Arthur Earl Bonfield 

Thomas M. Boyd 

Elliot Bredhoff 

Ronald A. Cass 

James W. Cicconi 

Charles J. Cooper 

Eldon H. Crowell 

Arthur B. Culvahouse, Jr. 

E. Donald Elliott 

Lewis A. Engman 

Fred F. Fielding 

Ernest Gellhorn 

Mark H. Gitenstein 

Michael D. Hawkins 

Frederick Wells Hill 

Robert M. Kaufman 

Frederic Rogers Kellogg 

William J. Kilberg, 

Dennis J. Lehr 

James C. Miller, III 

Joseph A. Morris 

Betty Southard Murphy 

Theodore B. Olson 

Marian P. Opala 

William T. Quillen 

James F. Rill 

Jonathan Rose 

Stuart J. Stein 

Philip N. Truluck 

Michael M. Uhlmann 

David C. Vladeck 

Michael B. Wallace 

William H. Webster 

Jonathan A. Weiss 

Richard S. Williamson 



Government Members 

Mary L Azcuenaga 
Sheila C. Bair 
John E. Bowman 
Anne E. Brunsdale 
David N. Cook 
Carol C. Darr 
Beverly Dennis III 
Neil R. Eisner 
Edwin G. Fouike, Jr. 
Edward A. Frankle 
Eric J. Fygi 
Mark Gerchick 
John Golden 
Beryl Gordon 
Jamie S. Gorelick 
Conrad Kenneth Harper 
Alan W. Heifetz 
Emily C. Hewitt 
Roger A. Hood 
Kevin R. Jones 
Mary Lou Keener 
James J. Keightley 
John D. Leshy 
Lorraine Pratte Lewis 
J. Virgil Mattingly, Jr. 
Emma Monroig 
Lawrence M. Noble 
Thomas Panebianco 
Phillip D. Parker 
William C. Parler 
Margaret Jane Porter 
Stephen D. Potts 
R. Gaull Silberman 
Daniel L. Skoler 
Theodore Sky 
John T. Spotila 
James M. Stephens 
Jerry G. Thorn 
George L. Weidenfeller 
Paul E. Williams 
Gerald H. Yamada 
David C. Zeigler 
Seth D. Zinman 




Administrative Conference of the United States 
3rd edition 1993